Insight
Immigration Appeals – what if witnesses are outside the UK?
Can witnesses abroad give evidence in UK Immigration Appeals?
For many years, Tribunals have allowed witnesses who are resident abroad to give oral evidence by video link or telephone, without having the need to obtain the permission of the authorities of the country in which they were located at the time of providing the evidence.
Since the Covid-19 pandemic, the use of Cloud Video Platform, (CVP) has become commonplace and, in some cases, little consideration has been given to where a witness is resident at the time of providing oral evidence.
However, new Presidential guidance, from the Immigration and Asylum Tribunal, highlights the importance of considering this point at an early stage and ensuring that the appropriate permissions are in place.
Requirement to obtain permission from the country where the witness is resident
In the case of Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC), the Secretary of State for the Home Department objected to the giving of oral evidence by video from Nigeria because the witness was unable to demonstrate that Nigerian authorities had permitted his participation in UK legal proceedings whilst he was resident in Nigeria. It was held that a UK Tribunal must ask a foreign state for permission for an individual to give oral evidence in the UK from within its territory.
Agbabiaka highlighted the fact that if an individual intends to give oral witness evidence, whilst located in a foreign jurisdiction, to do so could have diplomatic implications. Hence, in order to maintain healthy diplomatic relations, in the event a witness is requested to provide evidence remotely, e.g., from India, permission must be sought from the Indian authorities beforehand. It is, therefore, the responsibility of the party who wishes to rely upon a witness from a jurisdiction outside the to bring this to the UK tribunal’s attention at the earliest opportunity.
Updated Immigration Appeal guidance
On 12 July 2022, President Michael Clements of the First Tier Tribunal Immigration and Asylum Chamber, issued an updated presidential guidance note in relation to the taking of oral evidence by video or telephone from persons located abroad in immigration and asylum matters.
The guidance confirms that the party seeking to rely upon the oral witness evidence must apply, on notice to the opposing party, to the Resident Judge of the Hearing Centre at which the application or appeal has been allocated for permission to call oral evidence from the individual in question. Along with other details of the witness and the appeal, the applying party must demonstrate that there is disputed witness evidence for which admitting the oral testimony of the witness is requisite to the appeal.
If no aspect of the evidence of the witness is in dispute, it will usually be appropriate for the Tribunal to refuse permission to admit the proposed oral evidence. However, if the evidence is disputed and the Tribunal is minded to admit the oral evidence, the Tribunal will then seek guidance from the government’s “Taking of Evidence” unit (established in November 2021) at the Foreign, Commonwealth and Development Office (FCDO) of the country to ascertain whether there is any objection to the witness providing evidence from abroad to the United Kingdom Immigration Tribunal.
The Presidential guidance does not affect the obligations upon the Secretary of State for the Home Department in appeals certified by her under section 94B of the 2002 Act (where applicants have only been granted an out of country right of appeal); The Secretary of State will continue to provide the necessary assistance for an appellant to give evidence from outside the UK, or facilitate their return to be able to pursue their appeal in-country, in with the dicta in R (Kiarie & Byndloss) v Secretary of State for the Home Department [2017] UKSC 42.
New procedure for applying for permission
As the Guidance explains, applications should be made in a timely manner and the decision of whether to postpone or delay a hearing to allow enquiries to be carried out is a judicial decision and therefore a matter for the Tribunal.
The full procedure to apply for the admission of oral evidence from abroad is set out in the updated presidential guidance note of July 2022 at: