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New Guidance on Evidence from Overseas in the First-tier Tribunal

In our previous blog post, we discussed the case of  Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), and the requirements for oral evidence to be heard from abroad in the First-tier Immigration Tribunal. Since this case, the President of the First-tier Tribunal’s Immigration and Asylum Chamber has published new guidance for parties who wish to call oral evidence from a witness who is not in the UK. 

Presidential Guidance on Evidence from Overseas in the First-tier Tribunal

The guidance begins by confirming that the obligation rests on the party proposing to adduce oral evidence from overseas by video or telephone link to establish that there is no legal or diplomatic obstacle to their doing so.

The guidance has taken into account the evidence given on behalf of the Secretary of State for Foreign, Commonwealth and Development Affairs before the Upper Tribunal in Agbabiaka. It states that in light of this evidence, any statements or representations made prior to 29 November 2021 on behalf of the Secretary of State as to whether a particular government has any objection to the taking of oral evidence from an individual within their jurisdiction in the course of proceedings before the First-tier Tribunal should no longer be relied on as an accurate representation of the stance of that government (with one exception – detailed below).

Since a party may rely on written submissions or written evidence that has been supplied by an individual who is overseas without needing to establish that there are no legal or diplomatic obstacles, this is an approach which is encouraged by this guidance. It is clear that the guidance is encouraging a  pragmatic approach, seeking to limit extensive delays being caused when parties wish to rely on oral evidence. In particular, the guidance confirms that:

“Given the potential for delay whilst the stance of a particular overseas government is determined it will always be a matter for judicial discretion by reference to the overriding objective as to whether determination of proceedings should be delayed. The Tribunal will balance the prospect for delay against the ability of the party to rely upon detailed written evidence.”

Even if a party is able to establish that there are no legal or diplomatic obstacles to oral evidence being given from overseas, it will remain a matter of judicial discretion by reference to the overriding objective whether the evidence will be admitted.

What Must a Party Do if They Wish to Call Oral Evidence From Overseas?

On 29 November 2021, the Secretary of State for Foreign, Commonwealth and Development Affairs established a new “Taking of Evidence Unit” (ToE). The ToE will establish the stance of each overseas government to the taking of oral evidence in the First-tier Tribunal and the response of the ToE will be considered to be determinative of the matter for the purposes of the First-tier Tribunal. 

The guidance outlines the approach which should be taken in all cases except appeals which have been certified under Section 94B of the 2002 Act. These cases will differ as the process previously used by the Secretary of State in such appeals already involved checks with the government of the territory in which the appellant was situated. 

In all other appeals, the party wishing to rely on oral evidence must inform the Tribunal of their intention to do so at the earliest possible date, notifying them of the country in which the individual is situated, and identify the issues on which it is proposed that the individual should offer evidence. They should indicate what evidence they are able to offer on those issues sufficient to obtain a meaningful response from the opposing party. The opposing party will need to respond within 14 days of receipt of this information to indicate what (if any) aspects of the evidence would be in dispute. 

If no evidence is likely to be in dispute, the guidance indicates that it will, in most cases, be sufficient for the party to rely on a detailed witness statement and not ask the witness to give evidence. 

If any aspect of the evidence is likely to be in dispute, the party wishing to rely on the evidence must make a request to the FCDO by email to  TOE.Enquiries@fcdo.gov.uk asking if the FCDO is aware of any diplomatic or other objection from the authorities in the country in which the witness is situated to their providing oral evidence by video or telephone to an administrative tribunal in the United Kingdom. 

What Is the Process if the FCDO Confirms That There Is Consent?

If the FCDO confirms there is consent, this does not necessarily mean that oral evidence will be allowed by the Tribunal. Once consent has been confirmed a party must apply, on notice to the opposing party, to the Resident Judge of the Hearing Centre, to rely on oral evidence. They must provide certain details, including of the practical steps involved to call the evidence from overseas, the reasons that a witness cannot attend in person, and evidence of correspondence with the opposing party in which the parties have sought to narrow the issues in the appeal. The party will also need to undertake to be responsible for implementing any practical steps. 

What if the FCDO Confirms There Is No Consent?

If the FCDO confirms there is no consent, then the party will still be able to rely on a witness statement from that individual. The weight to be placed on the evidence without the opportunity for cross-examination will be a matter for the Judge. 

What if No Response Is Received?

If no response is received then the FCDO alone can determine whether an inference may be drawn that the country in question does not raise any objection.

As indicated above, the guidance is mindful throughout of the scope for delays and the impact on the parties of this. It states that the Tribunal will need to balance the prospect of the delay with the ability of the party to rely on detailed written evidence and to consider the following:

  • If the delay could be avoided by witnesses travelling to a third country;
  • If the Tribunal can  be satisfied as to the relevant matters by a written witness statement, and if any oral evidence would be determinative of the appeal and add materially to the content of the written statement;
  • If the witness could address the disputed issues by providing written answers posed by the opposing party and authorised by the Tribunal.

Conclusion

This guidance offers helpful clarification on not only the procedure to be followed in respect of oral evidence from overseas, but also on the Tribunal’s intended approach to this procedure. It is clear that the Tribunal will be mindful of the potential for lengthy delays to be caused by the process, and that as a result, oral evidence from overseas will be a matter of judicial discretion, with alternatives likely to be considered in each case.

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