Presidential Guidance Note 2 of 2024 – Taking Evidence from Abroad
The president of the First-tier Tribunal Immigration and Asylum Chamber has released new guidance regarding the procedure to be undertaken when a witness wishes to give evidence in a live hearing from outside the United Kingdom.
The first step is that the party that wishes to rely on the evidence must seek permission from the Tribunal to do so. The obligation to obtain permission rests on the party bringing the evidence.
When considering granting permission the Tribunal will need to be satisfied that the country in question consents to the witness giving evidence live by video link. This is up to judicial discretion. Permission is not required for evidence to be given from anywhere in the UK or crown dependencies and parties do not need to seek permission from the Tribunal in relation to producing a witness statement or documentary evidence from abroad.
If a party wishes to produce live evidence from abroad, they must follow certain procedures.
- Firstly, the Appellant should check the FCDO website to see if the country in question has given permission for the use in Tribunal proceedings of live video evidence from their territory. If permission has been expressly refused, then evidence cannot be taken.
- Secondly, if permission has not been expressly refused, an application for permission needs to be made. This should be made when the ASA and appeal bundle are submitted. Failure to notify the Tribunal in sufficient time may result in the Tribunal refusing to admit the evidence.
- Thirdly, certain information must be supplied relating to the case and the witness in question. This information is as follows:
(a) the name of the party and case number
(b) the name of the proposed witness
(c) the country from which they will be giving evidence
(d) evidence of their citizenship or residence in that country
(e) the Time Zone applicable, and thus the time difference between the United Kingdom and the country in which the witness is situated
(f) confirmation that the proposed witness has the ability to access the appropriate hearing platform
(g) an explanation as to why the evidence is necessary by reference to the disputed issues.
The respondent (normally the Home Office) will then review the application and must state whether the evidence from the witness in question is in dispute and whether cross-examination is necessary. If the respondent does not review the application, then the Tribunal will proceed on the assumption that the respondent does not dispute the evidence.
If the evidence is not disputed, then the witness’s evidence can be read and there is no need for them to give live evidence. If the evidence is in dispute, then, if the country the witness is in has consented, the Tribunal can grant permission to hear their oral evidence from abroad.
The FCDO may make additional enquiries for a fee (currently £150). The Tribunal will direct that the requester makes an application to the Taking of Evidence from Abroad Unit (ToEU) to make the further enquiries. The ToEU may contact the requester directly for more information. The ToEU will then contact the relevant embassy or high commission who will ask the Ministry of Foreign Affairs if the government of the relevant country has objections to witnesses giving evidence from their territory. The MFA will be given a 6-week deadline to respond.
If ToEU tell the Tribunal permission is refused, the Tribunal must refuse to admit oral evidence. If the ToEU says permission is granted, then the Tribunal can grant permission for the evidence to be taken. This may be conditional if the permission from the country is conditional.
If the government of the country does not respond in 6 weeks, then the ToEU will tell the requester about the lack of response and the FCDO recommends that evidence not be taken in these circumstances. The Tribunal should refuse to admit the evidence.
It is important to remember that, if permission is granted, the witness should attend at the appointed time. The Appellant is also responsible for the witness’s email address being provided to the Tribunal so that a joining link can be sent to them. Appellants and witnesses should also note that the Tribunal will only use approved platforms for the video link such as the Cloud Video Platform (CVP).