Vulnerable adult witnesses in immigration appeals
In This Article:
The Immigration Tribunal must identify and respond appropriately when an appellant or witness may be vulnerable. The aim is to enable the person to participate effectively and give their best evidence, while preserving a fair hearing for all parties. The issue most commonly arises in a First-tier Tribunal immigration appeal, although the relevant principles and guidance also apply in the Upper Tribunal.
Vulnerability should be raised as early as possible. The arrangements are tailored to the individual and may include changes to questioning, breaks, remote evidence or, in rare cases, an intermediary. A finding of vulnerability does not determine whether the person’s account is credible.
1. What does “vulnerable” mean in an immigration appeal?
The relevant framework includes the First-tier Tribunal Practice Direction of 1 November 2024, the Practice Direction on Child, Vulnerable Adult and Sensitive Witnesses of 30 October 2008, the latest Equal Treatment Bench Book and Joint Presidential Guidance Note No 2 of 2010.
The practical question is how the person’s circumstances affect their ability to understand the proceedings, communicate, concentrate, recall events, manage distress or give evidence. Relevant circumstances may include age, mental or physical health, learning difficulties or differences, disability, trauma, torture, trafficking, detention, domestic abuse, fear or distress. Religious beliefs, sexual orientation, cultural background and domestic circumstances may also be relevant where they affect participation or the giving of evidence.
A person may require support even without a formal diagnosis. Equally, the existence of a medical condition does not automatically establish that every adjustment is necessary.
2. How should vulnerability be raised before the hearing?
Vulnerability should, so far as possible, be identified before the substantive hearing. The party calling the witness and their representatives have primary responsibility for raising the issue, but the Tribunal may also identify it on its own initiative.
A case-management request, should explain the relevant condition or circumstance, its practical effect on participation or evidence, and the particular arrangements sought. Where the appeal uses the online procedure, the request should normally be made through the relevant online portal. A broader practical guide to immigration tribunal appeals explains the surrounding case-management process.
Medical or other expert evidence may be required where the effect of a condition is disputed, specialist measures are sought or the Tribunal needs assistance understanding communication, memory, concentration or distress. Where expert evidence is relied on, it should address the person’s functional needs rather than simply state a diagnosis. A formal expert report is not required in every case.
The witness should be involved in identifying what would help. An arrangement should not be imposed simply because it is commonly used for another person with a similar condition.
3. What measures can the Tribunal put in place?
The appropriate measures depend on the person and the evidence. They may include:
- giving evidence by telephone, video link or another directed method;
- using plain English and asking only one proposition in each question;
- judicial control of the tone, pace and form of questioning;
- regular or additional breaks and a realistic hearing timetable;
- time to become familiar with the hearing room or remote platform;
- appropriate space for a carer or supporter, while preserving the integrity of the evidence;
- focused questioning that avoids unnecessary repetition and reduces the risk of re-traumatisation;
- a private hearing, or exclusion of a particular person, where the legal test is met; and
- in rare cases, appointment of an intermediary.
The Tribunal should select measures that address the identified difficulty. The existence of vulnerability does not make every measure necessary, and a witness should be consulted about arrangements that affect them.
4. Can the public be excluded from the hearing?
Immigration appeal hearings are ordinarily public. The Tribunal can direct that all or part of a hearing is private, or exclude a person whose presence is likely to prevent evidence or submissions being given freely. This is a discretionary exception to open justice, not an automatic consequence of vulnerability. Privacy and anonymity are separate issues.
5. Does a vulnerable witness have to give oral evidence?
A vulnerable adult or sensitive witness should be required to attend to give oral evidence only where the Tribunal considers the evidence necessary for a fair hearing and is satisfied that the person’s welfare would not be prejudiced by doing so.
There will nevertheless be many cases in which a vulnerable person can, and wishes to, give evidence once appropriate arrangements are in place. The decision is fact-sensitive and should not be based on assumptions about disability, trauma or mental health.
6. How does vulnerability affect credibility?
The Tribunal should consider whether and how the vulnerability affected the person’s ability to recall events, provide a consistent account, understand questions or give evidence under pressure. The purpose is to ensure the best practicable conditions for evidence and then to evaluate that evidence fairly.
In SB (vulnerable adult: credibility) Ghana [2019] UKUT 398 (IAC), the Upper Tribunal confirmed that vulnerability does not make every adverse credibility finding problematic. It remains for the judge to decide the relationship between the vulnerability and the evidence. Adverse findings remain possible where they are lawfully and fairly reasoned.
7. Can a failure to address vulnerability be an error of law?
Yes, where the failure results in material procedural unfairness or materially affects the assessment of the evidence. In AM (Afghanistan) v Secretary of State for the Home Department [2017] EWCA Civ 1123, the Court of Appeal emphasised the importance of the relevant Practice Direction and Presidential Guidance and observed that failure to follow them would most likely amount to a material error of law. More recently, in Khan v Secretary of State for the Home Department [2026] EWCA Civ 148, the Court of Appeal clarified that the Guidance does not impose freestanding legal obligations and that failure to follow or expressly refer to it does not automatically establish an error of law. The ultimate question is whether the proceedings were fair and just, including whether the person was able to participate effectively and whether their evidence was properly and fairly assessed.
Materiality is fact-sensitive. What matters is whether any relevant vulnerability was properly accommodated in the conduct of the proceedings and taken into account where it was capable of affecting the assessment of the evidence. Where the First-tier Tribunal has materially failed to address vulnerability, an Upper Tribunal immigration appeal may be available. The process for First-tier Tribunal onward immigration appeals involves separate permission requirements and time limits.
8. Contact Our Immigration Appeal Barristers
For advice on preparing an immigration appeal, contact our immigration barristers and lawyers in London on 0203 617 9173 or complete our enquiry form below. Our team can also advise on how to appeal a UK visa or immigration refusal and the evidence required.
9. Frequently Asked Questions
What is a vulnerable witness in an immigration appeal?
A vulnerable witness is a person whose circumstances may impair effective participation or the quality of their evidence. The assessment is functional and fact-sensitive; it is not confined to a current statutory list or a formal medical diagnosis.
Do I need a medical report to establish vulnerability?
Not always. A clear explanation of the functional difficulty and the adjustment sought may be sufficient, but focused medical or expert evidence can be important where the effect is disputed or specialist assistance, such as an intermediary, is requested.
When should vulnerability be raised?
It should be raised as early as possible, ideally during case management and before the substantive hearing. Late developments should still be notified promptly, with reasons and supporting material where available.
What adjustments can the Immigration Tribunal make?
The Tribunal can tailor questioning, use plain English, permit breaks, adjust timing, direct remote evidence, control who is present and, in rare cases, appoint an intermediary. The appropriate measures depend on the individual.
Can a vulnerable witness give evidence by video link?
Yes. The Tribunal may direct evidence by video link, telephone or another method where that is fair and suitable. Remote evidence is not automatically preferable and the witness’s individual communication and welfare needs must be considered.
Can an immigration appeal hearing be private?
Yes, but only where the Tribunal makes an appropriate direction. Hearings are ordinarily public, and any private hearing or exclusion must be justified under the Procedure Rules.
Does vulnerability prevent an adverse credibility finding?
No. Vulnerability must be taken into account when evidence is given and assessed, but the Tribunal may still make an adverse credibility finding if its reasoning is lawful and fair.
Please note that the information provided in this article is for general guidance only and is based on the immigration rules and policies in force at the date of publication. Immigration law and Home Office policy can change frequently, and requirements may vary depending on individual circumstances. Legal advice should always be sought in relation to your specific situation.
