Oral Evidence From Abroad in the Immigration Tribunal
When can the First Tier Immigration Tribunal hear oral evidence from abroad? When the foreign state, from where oral evidence is to be taken, says so. Or rather, when the Foreign, Commonwealth and Development Office (FCDO) says that the foreign state says so. So said the Upper Tribunal in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC).
At a time when the Tribunal, having had to adapt to the consequences of the Covid-19 pandemic, continues to conduct hearings via remote means, essentially enabling parties and witnesses to give evidence from their own home (or at least not a tribunal hearing centre), the need for permission in order to give evidence from abroad appears puzzling. Why does it matter if a person gives evidence from their living room in the UK or their living room anywhere else in the world?
State Sovereignty and Diplomatic Relations
The Upper Tribunal seems to have sensed that this would not be immediately clear, especially to a lay person, and hence explains the reason early in the body of the judgment and at the first paragraph of the headnote:
“There is an understanding among Nation States that one State should not seek to exercise the powers of its courts within the territory of another, without having the permission of that other State to do so. Any breach of that understanding by a court or tribunal in the United Kingdom risks damaging this country’s relationship with other States with which it has diplomatic relations and is, thus, contrary to the public interest. The potential damage includes harm to the interests of justice.”
Essentially, due to state sovereignty and diplomatic relations. The Upper Tribunal acknowledged the existence of the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (18 March 1970), which establishes a framework of mechanisms to facilitate the taking of evidence between contracting States. The Secretary of State’s position was that this does not apply to immigration appeals in the UK, as these are administrative, rather than civil proceedings. The parties agreed that it was not necessary for the Upper Tribunal to determine this, however, as not all states were parties to the Convention and the matter of whether evidence can be taken from abroad is a question of law for the relevant country in any event.
As such, it was found that: “In all cases, therefore, what the Tribunal needs to know is whether it may take such evidence without damaging the United Kingdom’s diplomatic relationship with the other country.” Further: “[t]he position of the Secretary of State for Foreign, Commonwealth and Development Affairs is that it is accordingly necessary for there to be permission from such a foreign State (whether on an individual or general basis) before oral evidence can be taken from that State by a court or tribunal in the United Kingdom.”
Written Evidence And Oral Submissions Do Not Normally Require Permission
The FCDO does not consider that there is risk to the UK’s diplomatic relations with giving written evidence or making oral submissions from abroad and therefore permission is not required for those. The Upper Tribunal deferred to the FCDO’s view, but stated that a tribunal is likely to conclude that permission will still be required in cases where it suspects that the person making oral submissions from abroad may stray into the giving of evidence. Good news for overseas advocates, not so good for litigants in person.
Process For Enquiries With The FCDO
The FCDO’s proposed process is as follows:
“i) The requestor, usually a party to the proceedings or their representative, sends a request to the FCDO by email ( TOEEnquiries@fcdo.gov.uk ) asking if the FCDO is aware of any diplomatic or other objection from the authorities in Country X to them providing evidence by video link to an administrative tribunal in the UK.
ii) FCDO’s ToE Unit processes enquiries on a case-by-case basis. The ToE Unit check their records to see if a check has previously been made on Country X position or if the last check was made more than five years ago.
iii) If a check has been made in the last five years, the requestor is informed of this by the ToE Unit and the outcome.
iv) If a check has not been made in the past five years, the ToE Unit ask the requestor if they wish FCDO to raise an enquiry with British Embassy or British High Commission in Country X.
v) If the requestor wishes such a check to be made, the ToE Unit will collect the Consular Fee, currently £150, from the requestor.
vi) At the request of the ToE Unit, the relevant British Embassy or High Commission will check with its local Honorary Legal Adviser if there is any law which explicitly prevents residents or nationals of Country X providing evidence by video link from Country X to Administrative Tribunals in the UK.
vii) If there is no such law, The Embassy or High Commission will check with the Ministry of Foreign Affairs by Note Verbale if the Government of Country X has any objection to residents or nationals of Country X providing evidence by video link from Country X to Administrative Tribunals in the UK.
viii) The Embassy or High Commission will inform the ToE Unit of the outcome of the enquiries at vi) and vii) above.
ix) The FCDO’s ToE Unit will respond to the initial enquirer.”
It was acknowledged that, if stages (iv)-(ix) become necessary, a response from the host government can take weeks, months, or might never arrive, despite reminders. This is in view of the existing process for making requests for civil or commercial cases. The FCDO anticipates that a new “Taking of Evidence” (ToE) unit will be established, as the current 15-20 requests per year for civil or commercial cases will likely increase to several hundred for Administrative Tribunals.
Who Has The Responsibility To Make Enquiries?
The current process with which the Home Office approaches out-of-country appeals certified under section 94B of the 2002 Act was also examined. In those, it is the Home Office’s responsibility to provide appellants with video facilities to conduct their appeals, following R (Kiarie & Byndloss) v Secretary of State for the Home Department [2017] UKSC 42, and as such, the Home Office arranges for the requisite checks on whether a person can lawfully give evidence from the relevant country via video-link. The Upper Tribunal finds that in all other cases, it should be for the party wishing to rely on oral evidence from abroad to go through the necessary FCDO process, as is the position in civil proceedings.
Therefore, paragraph 3 of the judgments headnote reads: “Henceforth, it will be for the party to proceedings before the First-tier Tribunal who is seeking to have oral evidence given from abroad to make the necessary enquiries with the Taking of Evidence Unit of the Foreign, Commonwealth and Development Office (FCDO), in order to ascertain whether the government of the foreign State has any objection to the giving of evidence to the Tribunal from its territory.”
Duty To Inform The Immigration Tribunal
Whilst the First-tier Tribunal needs to be informed at an early stage of the wish to give evidence from abroad and the party that wishes to rely on such evidence needs to give the Tribunal an indication of the nature of the proposed evidence, this does not need to be in the form of a witness statement, as previously required under paragraph 21(a) of Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC); gisting is sufficient.
Consideration Of Alternatives By The Tribunal In Case of Delays
The Upper Tribunal considers that [t]he Tribunal’s duty to seek to give effect to the overriding objective may require it, in particular, to consider alternatives to the giving of oral evidence where (for example) there are delays in the FCDO obtaining an answer from the foreign State. Each case will need to be considered on its merits.
One alternative considered was the admission of the appellant or witness to the UK for the purpose of giving oral evidence. The Upper Tribunal considered this a measure of last resort, but did not rule it out. The Secretary of State may well rule it out, however, as she did in the case of Shamima Begum, who was refused entry clearance to the UK to participate in her deprivation appeal. The Special Immigration Appeals Commission and later the Supreme Court, in R (on the application of Begum) v Secretary of State for the Home Department [2021] UKSC 7, found that the Secretary of State had not acted unlawfully or irrationally in refusing Miss Begum entry clearance, despite that fact that she could not effectively pursue her appeal from abroad, concluding that the interests of fairness do not, in principle, trump the interests of national security.
The Upper Tribunal’s Observations On The Proposed FCDO Process
The FCDO’s stance appears to be that it will treat silence on the part of the foreign government (following reminders) as a tacit refusal of permission. This is contrary to the Home Office’s approach in s.94B appeals, where silence is treated as tacit approval, to avoid delays in appeals being considered. The Upper Tribunal commented that equal consideration ought to be given to the interest of appellants to have their appeals promptly determined, but stated that this matter could not be properly resolved in these proceedings, deferring to the FCDO and Home Office instead.
The Upper Tribunal did not comment on the matter of the £150 fee at stage (v) of the proposed ToE process or its justification.
It was considered important for any requests made to a foreign country to proceed on a general basis and to avoid identifying the individual appellant or witness, given the potential safety and/or privacy implications.
No Longer A Requirement For Evidence To Be Given From Another Tribunal Hearing Centre
Finally, it was finally held that paragraph 21(c) of Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) is not to be followed: “The experience gained by the First-tier Tribunal in hearing oral evidence given in the United Kingdom by remote means during the Covid-19 pandemic is such that there should no longer be a general requirement for such evidence to be given from another court or tribunal hearing centre.”
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