Vulnerable adult witnesses in immigration appeals
In certain circumstances, applications can be made for appellants and witnesses in the Immigration Tribunal to be treated as ‘vulnerable’. The Tribunal can also make a finding that an appellant or witness is vulnerable of its own accord. If either an appellant or witness is identified as being vulnerable then the Tribunal will be likely to put special measures in place.
What makes an appellant or witness in immigration appeals ‘vulnerable’?
The circumstances in which an adult will be treated as vulnerable are outlined in the Joint Presidential Guidance Note No. 2 of 2010: Child, Vulnerable Adult and Sensitive Appellant guidance as well as in the Practice Direction for the First Tier and Upper Tribunal on Child, Vulnerable Adult and Sensitive Witnesses. An individual may be vulnerable because of an innate characteristics (such as age), because of personal characteristics (such as mental health problems) or because of events over which they have or have had no control eg. past detention or torture. This blog post will address the circumstances in which adults may be viewed as vulnerable.
As defined in the President’s Guidance, the Tribunal should attribute the same meaning to ‘vulnerable adult’ as in Section 59 of the Safeguarding Vulnerable Groups Act 2006. This defines circumstances in which an adult will be viewed as vulnerable, including when an individual is in residential accommodation, sheltered housing, detained in lawful custody or who require assistance in the conduct of their affairs.
However, the Presidential Guidance also indicates that whilst those listed above may be easily recognised as being vulnerable, there are cases which may be less clear and which require further assessment. The Presidential Guidance requires the following factors to be taken into account: mental health problems, social or learning difficulties, religious beliefs and practices, sexual orientation, ethnic social or cultural background, domestic and employment circumstances or physical disability or impairment that may affect the giving of evidence.
What measures can be put in place for vulnerable adults in immigration appeals?
It is important to note that the measures that will be taken as a consequence of someone’s vulnerability will depend on the degree to which the individual is affected. The Tribunal is required to determine the extent of any identified vulnerability, the effect on the quality of any evidence given and the weight to be placed on the vulnerability in assessing the evidence before taking it into account.
In so far as possible, vulnerability should be identified prior to the hearing in order for appropriate arrangements to be put in place. The responsibility for identifying vulnerable individuals lies with the party wishing to call them, but as outlined in the Presidential Guidance the responsibility may fall on the Tribunal if this has not been done. If vulnerability is suspected, the Tribunal is required to establish the precise details of any potential disability or medical condition to allow appropriate arrangements to be made. If the Tribunal identifies an individual as being vulnerable and they are not legally represented, it may consider whether an adjournment is appropriate in order to allow legal representation to be obtained. The Tribunal may also consider whether expert evidence as to an individual’s disability or mental health is required.
The suggested arrangements identified in the Presidential Guidance include ensuring adequate space for carers, ensuring the time estimates provided allows for special arrangements such as frequent breaks to ensure adequate concentration levels, and giving vulnerable individuals time to familiarise with the hearing room prior to the proceedings commencing. The Guidance further states that, if possible, agreement should be reached between parties to enable questions to be focused, sensitive, and to avoid potential re-traumatisation. It is also possible for members of the public to be excluded from the courtroom to enable oral evidence to be given freely and without covert intimidation. The Practice Direction states that it may be appropriate for the Tribunal to direct that the evidence should be given by the telephone, video link or other means directed by the Tribunal, or to direct that a person be appointed for the purpose of the hearing who has the appropriate skills or experience in facilitating the giving of evidence by a vulnerable adult or sensitive witness.
The Practice Direction states that a vulnerable adult or sensitive witness will only be required to attend as a witness to give evidence at a hearing where the Tribunal determines that the evidence is necessary to to enable the fair hearing of the case and their welfare would not be prejudiced by doing so. This should be viewed in light of the fact that the degree to which an individual will be affected should be taken into account, and that there will be many circumstances where an individual is able to, and may well wish to, give evidence with the appropriate conditions in place.
Can a failure to recognise a vulnerable witness constitute an error of law?
The Presidential Guidance makes it clear that the decision should record whether the Tribunal has concluded that the Appellant or witness is vulnerable or sensitive, the effect that the vulnerability had on the Tribunal’s assessment of the evidence before it, and thus whether the Tribunal was satisfied that the Appellant has established their case to the relevant standard of proof.
If the Tribunal fails to follow the above guidance in identifying vulnerable witnesses, putting in place appropriate measures and considering how their vulnerability has impacted the evidence they have given, this may in certain circumstances be capable of giving rise to a ground of appeal. This was confirmed by Sir Ernest Ryder, Senior President of Tribunals in the case of AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123. He referred to the Joint Presidential Guidance and the Practice directions, stating that “the directions and guidance contained in them are to be followed…Failure to follow them will most likely be a material error of law”.
In SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC) it was held by the Upper Tribunal that the fact that the judicial fact-finder decides to treat an appellant or witness as a vulnerable adult does not mean that any adverse credibility finding against them would be inherently problematic and therefore open to challenge on appeal. It was held in this case that the purpose of the Guidance is to ensure that the best practicable conditions are put in place for the person to give their evidence, and to ensure that their vulnerability is taken into account in assessing the credibility of that evidence. However, it is for the judicial fact-finder to determine what the relationship is between the vulnerability and the evidence. It therefore remains open to the Tribunal to make adverse credibility findings despite having recognised an individual’s vulnerability.
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