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Other witnesses of fact, linked appeals and hearing evidence from abroad

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Other witnesses of fact

15.1 The Rules give the Tribunal the power to limit oral evidence, but it should not exclude the evidence of any witness whose evidence is admissible and relevant (R v IAT, ex parte Hussain) [1982] Imm AR 23).

15.2 Additional witnesses of fact can provide crucial collaboration where the appellant's credibility is in issue. Even if the evidence they can give is limited, it may be sufficient to preclude a blanket adverse credibility finding in respect of the appellant. If the judge accepts that one aspect of the appellant's account is corroborated, that may favourably influence his view of other aspects of her evidence.

15.3 Do not automatically call family members and friends of the appellant just because they are there. You need to assess what their evidence will add to the appeal. Additional witnesses are not always helpful and may even be dangerous. The fact that an act of persecution was witnessed by your client's partner does not necessarily mean that she must give evidence of that fact. The HOPO will inevitably argue that her evidence should be given little weight because of her relationship to the appellant (see below), although he will equally criticise the opposite approach of not calling oral evidence from a family member who witnessed any relevant event. The Tribunal has becoming increasingly used to hearing evidence from family members and may draw adverse inferences where they are not called if they witnessed events. The HOPO may use cross-examination of the witness to embark on a fishing expedition to see if he can elicit any inconsistency in the witness' description of the event compared with that of the appellant. If both witnesses are discussing traumatic events from some time ago through interpreters, there is a real possibility that he will succeed.

15.4 On the other hand, if the proposed witness is not a very close relative, his evidence may provide particularly valuable corroboration. A judge must make an assessment of each witness before him and consistency should be given weight in the same way as inconsistency. There will also be good reason to call the appellant's partner (or another close relative) where you decide they will give better evidence than the appellant. If the appellant is unable to give oral evidence because of her mental state, you may need to call someone else who can speak to her experiences. The same could apply if the appellant is a minor.

15.5 It will usually be appropriate to call a witness where he can give first hand evidence of a material event of which the appellant cannot give first hand evidence: for example, if the witness was interrogated about the appellant.

15.6 If there is a recognised refugee who can give material evidence, this will often represent particularly valuable corroboration. Even if she left the country of origin prior to the events which are in issue in the present appeal, she may be able to give evidence about how she heard of the events contemporaneously from your client or family members. That evidence (if accepted) may preclude a finding by the Tribunal that your client made up her account at some later date.

Witnesses who have already given evidence to the Tribunal

15.6A If a potential witness has already given evidence to the Tribunal (most usually in her own appeal), the Court of Appeal's judgment in AA (Somalia) and AH (Iran) v SSHD [2007] EWCA Civ 1040 (and endorsed in AL (Albania) v SSHD [2019] EWCA Civ 950 and SSHD v Patel [2022] EWCA Civ 36) illustrates the importance of considering the determination where there is a material overlap in the facts.

15.6B In the AH [2007] EWCA Civ 1040 case, both AH and his former partner had given evidence in the appeal of the former partner and sufficient parts of their evidence had been accepted to allow the appeal. The judge who subsequently heard AH's appeal allowed it by adopting the findings of the previous judge, there being no compelling evidence for departing from these findings. The Home Office successfully challenged the determination before the Tribunal. The Court of Appeal however allowed AH's appeal from the Tribunal, holding that the judge's "conclusion that there was no "compelling new evidence" before him [justifying departing from the findings of fact in the first determination] seems to me unimpeachable. On that basis there was no reason for him not to follow the first decision." (para 71)

15.6C By contrast, in the AA [2007] EWCA Civ 1040 case, the appellant's sister gave evidence in support of the appellant and the IJ was aware that the sister's own appeal had been allowed. However, the appellant did not put the sister's determination before the Tribunal. The Court of Appeal considered that neither the Home Office nor the IJ were under any duty to obtain the sister's determination and given that the appellant (who was legally represented) had not submitted it, the IJ had not erred in failing to follow it and in reaching an adverse credibility finding in relation to the sister.

15.6D Note however that it is open to the Home Office to invite an IJ to follow adverse findings of fact in a previous determination on a similar basis. However, you may be able to rely on the Court of Appeal's observation in AA and AH [2007] EWCA Civ 1040 that there was a

valid distinction depending on whether the previous decision was in favour of or against the Secretary of State. The difference is that the Secretary of State was a direct party to the first decision, whereas the claimant was not. It is one thing to restrict a party from relitigating the same issue, but another to impose the same restriction on someone who, although involved in the previous case, perhaps as a witness, was not formally a party. (para 70; see also 78)

15.6E Although it "would not exclude Devaseelan v SSHD [2002] UKIAT 00702 principles in such cases", the fact that the appellant had not been a party to the previous determination would tell in favour of there being good reason to depart from the findings in the previous determination. It can also be argued that the factual matrix is not the same notwithstanding that there is a factual overlap (see paras 69-70; 76-78).

15.6F In SSHD v Patel [2022] EWCA Civ 36, the Court of Appeal agreed with the Home Office's submission that the guiding principles in cases where there are different parties but a material overlap in evidence were as follows:

37…(i) Where there are different parties but with a material overlap of evidence, the Devaseelan principles of fairness apply with appropriate modification.

(ii) What fairness requires will depend on the particular facts of the case. The findings at an earlier FTT hearing will be an important starting point but the second FTT judge cannot avoid the obligation to address the merits of the case on the evidence then available.

(iii) The second FTT judge necessarily will look for a very good reason to depart from the earlier findings. Whether the evidence could have been adduced at the previous hearing may be relevant to that issue. Equally, a very good reason may be that the new evidence is so cogent and compelling as to justify a different finding.

15.6G Whilst confirming that a modified version of Devaseelan would apply, the Court of Appeal in SSHD v Patel [2022] EWCA Civ 36 highlighted that each case will turn on its specific facts and much will turn on the weight of the evidence before the subsequent tribunal.

15.7 Even if a relative will not be giving evidence, it is often worth submitting her determination if she has won refugee status on appeal. That is particularly so where the Tribunal made findings of fact which are relevant to the determination of your own appeal (e.g. that the family as a whole are at risk). Check first whether there is anything in the factual summary which might be perceived as inconsistent with your client's evidence. Note that para 25 of the Tribunal's Guidance Note on CMRHs (which remains published on the Tribunal's website as a Guidance Note for the former AIT that is now relevant to FTTIAC) advises the Tribunal at any CMRH to ask for the determination in the appeal of any family member. It does not thereby impose a requirement on the appellant to provide such determinations where they are not relied upon, but you should be aware that the respondent may produce it at the full hearing, and the Tribunal may even call it up from its own archive.

15.7A If you are seeking to rely on findings of fact made in an unreported determination, you will need the permission of the Tribunal to cite it unless the appellant in the unreported determination was "a member of [the appellant's] family" (para 8.1(a) of the Practice Direction, which gives no definition of what constitutes a family member for these purposes). In light of the Court of Appeal's judgment in AA and AH [2007] EWCA Civ 1040, the fact that a determination contains findings about the individual facts relied on by your client (as opposed to country conditions) ought to be sufficient reason to permit its citation and in practice permission to rely on the determination of any witness you call is unlikely to be controversial. (See further chapter 29 for the citation of determinations.)

15.8 If the witness was granted refugee status or humanitarian protection by the Home Office at first instance, this will not carry the same weight as a previous finding by the Tribunal, but any Home Office attack on her general credibility should be considerably less persuasive. Sometimes the HOPO will argue that since the Home Office does not as a matter of course provide reasons for a positive decision, it cannot be assumed that the witness' account was accepted. If you wish to rely on the Home Office's acceptance of the claim, you should normally provide any statement which was before the Home Office and the interview records: AB (Witness corroboration in asylum appeals) Somalia [2004] UKIAT 00125. There will often be no credible alternative basis upon which the claim could have been accepted.

15.8A HOPOs sometimes claim that no reasons are recorded for granting asylum or humanitarian protection. This is both implausible and untrue: the Home Office records its reasons for granting claims internally by way of a 'consideration minute' (see the API on Assessing Credibility and Refugee Status at section 9: Decisions). It is unfair and unattractive for the Home Office to seek to avoid disclosing its reasons where these might inhibit the inconsistent attack that it might otherwise be minded to make on your witness. You can seek a direction that the reasons set out in the consideration minute be disclosed. If there is time, an alternative way of obtaining this may be for the potential witness to make a subject access request under the Data Protection Act (see chapter 9).

15.9 You should ensure that any friends or relatives who have been granted asylum, Humanitarian Protection, or Discretionary Leave are interviewed to determine whether they can give helpful evidence.

Witnesses who have pending asylum claims/appeals

15.10 There are complications involved in calling a witness who herself has an outstanding asylum claim or appeal. You should not do so without having full access to her papers, and satisfying yourself that she will give consistent evidence. But you may also have to explain to her, or invite her lawyers to advise her on, the consequences for her own case of giving evidence. The risk is highlighted by cases such as TK (Tamils - LP updated) Sri Lanka CG [2009] UKAIT 00049 AA (Somalia) and AH (Iran) v SSHD [2007] EWCA Civ 1040: if she is found not credible in your client's appeal, the Home Office may argue that the IJ should simply apply that credibility finding when it comes to her own appeal (see para 15.6D-E above). If the witness has a pending appeal, an option in some cases may be to consider applying for the appeals to be heard together (see from para 15.16 below).

15.11 You may have to consider applying for an adjournment in those circumstances. In R v IAT, ex parte Kimbesa (CO/2108/96), Mr Kimbesa's two brothers had arrived in the UK and claimed asylum shortly before Mr Kimbesa's appeal hearing. Their cases were interlinked with his and an adjournment was sought so that they did not have to give evidence in Kimbesa's case before their own claims had been considered. That was refused. On judicial review, Ognall J stated that:

[T]he consequence of the Adjudicator declining to adjourn the matter would be that one of the two brothers, who very recently arrived within the jurisdiction (some three weeks before) would have his claim for asylum (his factual evidence) tested in a strenuous, adversarial situation at a time which all the relevant guidance would indicate was inappropriate. It is well recognised that normal practice dictates that before an account of an asylum seeker is tested in an adversarial situation, bearing in mind the stresses inevitably imposed upon persons of that character in a strange and different environment, he or she should be afforded every reasoned opportunity to make representations and to give a full account of himself or herself in a less testing environment. That is, as I understand it, what [the appellant] was seeking to say to the Adjudicator on this occasion. 'He will be unfairly subjected to a test of his credibility. Unfairly because it is too early in his stay and he has not yet been afforded a sufficient opportunity to give a full account of himself and lodge any supporting material in a less testing environment.'

15.12 In Rajan v SSHD (01/TH/00244), the IAT considered the circumstances in which it would be appropriate to adjourn appeals where concurrent asylum applications from family members were under consideration. It pointed to Kimbesa (CO/2108/96) as an example of where it was unjust to refuse an adjournment. However, the IAT held that there was no general rule that appeals must be adjourned wherever there are concurrent asylum applications from family members under consideration by the Home Office. The IAT stated that:

The reality is that an IJ must look at the words of Rule 31(1) and will refuse an adjournment unless satisfied that refusing it would prevent the just disposal of the appeal. Of course, the existence of concurrent applications by members of the family is a relevant consideration and it may, in an appropriate case, point to an adjournment.

(Note that the 2014 Procedure Rules do not contain any presumption against adjournment, but only a general power to adjourn in accordance with the overriding objective: see chapter 8).

15.12A In SS (Adjudicators differing on family members) Sri Lanka [2004] UKIAT 00039, the Tribunal noted that

34. In Rajan 8th February 2002 CC/51103/99 (01/TH/0244*) the general inapplicability of Kimbesa was dealt with. There was and is no obligation to adjourn pending appeals, if there are concurrent applications by relations, and Kimbesa was not authority for that proposition. We can see no reason why somebody should not give evidence in an appeal, whilst their own appeal determination remains outstanding or before they have given evidence in their own appeal. It is particularly undesirable for that witness to be brought in to give evidence at a subsequent appeal. Now that second, human rights, appeals should be diminishing in numbers, it is yet more important that all the evidence is brought forward to be dealt with at the first opportunity; that is because it will be generally the Appellant's only opportunity. As the Adjudicator in this case pointed out correctly, a second witness may not be called in the first appeal for the tactical reason that discrepancies and contradictions may arise and wedges may be driven between the different accounts; thus it is hoped to advance the prospects of success for an Appellant by limiting those opportunities. It is highly undesirable for parties to litigation to seek to avoid that risk and then to bring the evidence in when the initial strategy has not succeeded. The appeal system does not permit an attempted finesse, followed by a replay of the lost trick.

15.13 An adjournment application is therefore unlikely to succeed if it is based simply on the proposition that it is unfair to expect a witness whose own appeal is pending to give oral evidence in your client's appeal. There should be better prospects of success if the potential witness has not yet had a decision in her own case, especially if she has not had her asylum interview, and the evidence she would give was closely interlinked to her own claim. In such circumstances, it seems unfair that she should have to disclose her account to the Home Office in the context of a cross-examination rather than an asylum interview conducted in accordance with the relevant guidance from the Home Office, UNHCR and others. (See below)

15.14 If, however, a family member's claim/appeal does not involve the same facts, or the potential witness' evidence is unlikely to be relevant to your own appeal, you are unlikely to be granted an adjournment, regardless of the closeness of the family relationship. In applying for an adjournment, you will have to fully explain how the cases are interlinked or what material evidence the potential witness can give.

15.15 Just because you might be entitled to an adjournment on this ground does not mean that you should apply for it. You will wish to weigh the factors discussed above as to the suitability of the potential witness.

Linked / combined appeals

15.16 The Tribunal has a power, as part of its general case management powers, to "consolidate or hear together two or more sets of proceedings or parts of proceedings raising common issues" (rule 4(3)(b)).

15.17 The Tribunal has stated that combined hearings should generally be used:

only... where the factual basis of each claim is so intertwined that it is only by considering them together that there can be a fair and proper evaluation of the evidence. In practice this is likely to be confined to family cases where each member relies on the same Convention reason or reasons arising out of a contemporaneous factual background. (Tahir (00/TH/01307))

15.18 Where this applies to two claims, one of which is before the Tribunal and the other has yet to be decided by the Home Office, the IAT stated that the Tribunal should give consideration to adjourning the hearing so that, if the second claim is refused, a combined hearing can be arranged. A similar view was expressed by Forbes J in Kallova (R on the application of) v SSHD [2001] EWHC 1137 (Admin) who stated:

It seems to me to be very unsatisfactory to deal with and dismiss one appeal of a family member, where that appeal is entirely identified in all relevant respects with a still current and outstanding appeal of another member of the same family. It is obvious that, if the father's outstanding appeal is successful (and there is no obvious reason for saying that it definitely will not be successful) then that outcome will produce an inconsistent result with the determination of this applicant's earlier, unsuccessful appeal. The adjournment of this applicant's appeal so that it could be heard at the same time as her father's later appeal was an obvious and sensible way to avoid any such risk of inconsistency. In my judgment, to reject the application to adjourn in circumstances such as these, which raise a real risk of such an inconsistency is arguably irrational.

15.18A Now that AA (Somalia) and AH (Iran) v SSHD [2007] EWCA Civ 1040 has established the importance of consistency between facts found in related appeals, there may be a strong basis for seeking an adjournment to await a decision by the Home Office so that, if appropriate, appeals of family members can be joined.

15.19 Even in those circumstances, however, combined hearings may give rise to the substantial practical difficulties identified by the Tribunal in Tabores and Munoz v SSHD (17819):

Each appellant is then primarily concerned with giving evidence in relation to and in support of his own claim. The existence of unresolved discrepancies does not necessarily mean that all the deponents are not telling the truth; it may be that one is telling the truth and the other or others are not. Each principal appellant is entitled, even in a combined hearing, to have his case determined on its own merits. A principal appellant's appeal should not fail solely because he and another principal appellant cannot both be telling the truth.

We do not say that in such circumstances combined hearings would never be appropriate. We think, however, that before proceeding with a combined hearing (even with the consent of the parties) an IJ would need to be very confident being able to perform the mental gymnastics involved in treating case A on its merits in the context of apparently contradictory evidence given in support of case B, and vice versa.

15.20 It also pointed to the additional concern that would arise if it were suggested that one of the appellants be excluded from the combined hearing while other appellants gave their evidence:

We very much doubt whether this is... appropriate or proper in the case of principal appellants, even though they may be represented in the hearing room during their absence.

15.20A However, in RS and SS (Exclusion of appellant from hearing) Pakistan [2008] UKAIT 00012, the Tribunal held that there was nothing wrong in principle with a judge offering appellants (in that case a mother and son), whose credibility was challenged, the choice of a combined hearing at which one would be excluded while the other gave evidence, or separate hearings. Where the appellants had elected to have a combined hearing on that basis, the Tribunal held that they had waived their right to be present throughout the hearing and could not subsequently complain that the procedure was unfair because the son had been excluded while the mother gave her evidence.

15.21 There will, of course, be circumstances in which it will be particularly unwise to apply for appeals of family members to be combined - an obvious example being where they have given inconsistent information to the Home Office.

15.22 Occasionally, the Home Office will also make an application for appeals to be joined under this rule (and the Tribunal can make a direction of its own motion). The Rules do not provide for a right to make representations before it is decided to hear appeals together. However, fairness would ordinarily indicate that such an important case management decision should not be made without such an opportunity, and rule 5(5) permits any party affected by directions given by the Tribunal to apply to amend, suspend or set aside the Tribunal's directions. You will obviously object to combined hearings where your client wishes to keep aspects of her history confidential, or where her evidence is sensitive. If there has been no proposal to combine the hearings, that also, of course, gives a family two chances to put their case to the Tribunal. In some circumstances, success in one of the appeals may enable an unsuccessful family member to obtain leave as a dependent.

Presenting evidence from witnesses in other countries

15.23 If your client has relatives or acquaintances who have been granted refugee status in other countries, that will also add to the weight of the evidence, especially if you can establish the reasons for which the claim was successful, e.g. obtaining and if necessary translating any reasoned decision. The value of other potential witnesses will depend on the issues discussed above. The potential importance of seeking such evidence is illustrated by the Court of Appeal's judgment in MF (Albania) v SSHD [2014] EWCA Civ 902 where the Court of Appeal concluded that the claimant had not submitted "all material factors at the persons disposal" for the purposes of rule 339L because there was no explanation why a statement had not been submitted from the claimant's mother in the country of origin who appeared to be the source of relevant information about the risk to the claimant.

15.24 You should start by interviewing the potential witness by telephone to determine whether she can give material evidence. If she can, and particularly if she is a refugee, enquire whether it is practicable for her to come to the UK to give evidence. If it is and she is available for the date of the hearing, write to the Tribunal (copied to the Home Office) asking that it ensure that the appeal is heard on the date listed because a witness is attending from abroad. If she cannot make the date and her evidence is sufficiently important, ask for the date to be changed.

15.24A If she is unable to travel to the UK, you should consider whether it is practicable to arrange for her to give evidence remotely from abroad. Rule 4(3)(g) allows the Tribunal to give directions as to the form of any hearing and will include a power to provide for a hearing conducted in whole or in part by video link, telephone or other means of instantaneous two-way electronic communication: see further, chapter 7A. Difficulties here, in addition to those relating to confidentiality and any disadvantages inherent in the giving of remote evidence (see below), can arise where the internet connection is not sufficiently stable in the country in which the person is giving evidence. You will want to ensure that your witness abroad has access to a reliable internet connection before proposing that he attends to give evidence remote.

15.24B The advances in technology and the experience of hearing evidence remotely gained by the Tribunal as a result of the Covid-19 pandemic have resulted in an increase in requests to hear evidence from abroad. In Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) and confirmed in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), the Upper Tribunal held that this will only be allowed if the permission of the foreign government from whose territory live evidence will be given to the Tribunal in the UK has been obtained. The Tribunal in Agbabiaka accepted the FCDO's position that there is no need to obtain permission for submissions (as distinct from evidence) to be made from abroad. Also in Agbabiaka the Tribunal stressed the imperative that in requesting permission, no information is provided to the foreign state about individual appellants and that all such requests proceed on a general basis (at [53]). This will clearly be at the forefront of your client's mind in most protection claims and the real concern in an asylum appeal is often reassuring witnesses of the steps that can be taken to prevent the authorities in the country of origin from finding out they are giving evidence, where that may put the witness at risk. Confidentiality orders and related safeguards for such witnesses are discussed in chapter 32. The Tribunal in Agbabiaka then gave the following guidance on the need to obtain permission from the foreign State:

(1) 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.

(2) The 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. Such permission is not considered necessary in the case of written evidence or oral submissions.

(3) 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.

(4) The First-tier Tribunal will need to be informed at an early stage of the wish to give evidence from abroad. The party concerned will need to give the Tribunal an indication of the nature of the proposed evidence (which need not, at this stage, be in the form of a witness statement).

(5) The 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.

15.24BA The FCDO confirmed in witness evidence heard in Agbabiaka that until November 2021, there was in fact no process in place to secure the agreement of foreign States in respect of evidence to be given in administrative proceedings (as opposed to civil or commercial proceedings). It was said that previous statements of permission had in fact been given erroneously due to a failure to appreciate that the enquiries from tribunals were not considered to be within the scope of civil or commercial proceedings (at [26]-[32]). The FCDO witness evidence then set out the process it proposed should be followed which required parties, or their representatives, seeking to rely on witness evidence from abroad to contact a newly established Taking of Evidence Unit ('ToE') within the FCDO to establish whether it is aware of any diplomatic or other objection from the authorities of the country from which oral evidence is proposed to be given.

15.24BB The Upper Tribunal in Agbabiaka indicated that it was for the President of the First-tier to provide any further guidance following the establishment of the process by the FCDO. Presidential Guidance Note 4 of 2022 does that. It indicates that the ToE has contacted all states with whom the United Kingdom enjoys diplomatic relations and requested permission for the use in administrative tribunal proceedings of oral evidence from within their jurisdiction. The process now requires parties to apply to the Tribunal, rather than directly to the FCDO, and the Tribunal will liaise with the ToE in order to obtain confirmation of the stance of a particular state. It does not apply, however, to cases that have been certified under s94B where the Home Office has obligations to facilitate the appellant giving evidence: see further chapter 3.

15.24BC The Guidance Note then sets out the procedure for applications to the Tribunal to be made. An application, on notice to the Home Office, should be made to the Resident Judge of the hearing centre to which the case has been allocated and should be supported by a statement that provides the following information:

(i) the name of the proposed witness,

(ii) the country in which that individual is situated,

(iii) the Time Zone applicable, and thus the time difference between the United Kingdom and the country in which the witness is situated,

(iv) confirmation that the proposed witness has the ability to access the Video Hearing Platform, CVP, VHS, or, Microsoft Teams.

(v) the arrangements proposed to ensure that oral evidence is given in a formal and appropriate manner without interference, bearing in mind the time difference involved. (For the avoidance of any doubt HMCTS will not be responsible for any expenses incurred in implementing those arrangements, and the party calling the witness will be expected to bear those expenses.)

(vi) a list of the issues of disputed fact that are said to require the oral evidence of the witness, explaining in relation to each, why it is said that written evidence supplemented by Interrogatories is inadequate to address those issues. A sufficiently detailed explanation of the evidence must be provided to allow a meaningful response from the opposing party.

(vii) a witness statement from the individual in question that explains why they are unable to travel to the United Kingdom to attend the hearing in person, and provides their detailed written evidence upon the issues that remain in dispute in the proceedings,

(viii) copies of the correspondence with the opposing party upon the proposal to call the oral evidence from overseas, and any attempts to narrow the relevant disputed issues in the proceedings so as to reduce the necessity for it.

15.24BD The Home Office is given 14 days to respond to the application to indicate what (if any) aspects of the evidence of the witness remain in dispute, and whether they consider the disputed evidence can be dealt with by way of written responses to interrogatories. If no aspect of the evidence of the witness is in dispute, it will usually be appropriate for the Tribunal to refuse permission to rely on the proposed oral evidence.

15.24BE The Guidance Note makes confidentiality the subject of a case by case determination:

In the event that the Tribunal is notified by the ToE through HMCTS that the country in question requires information about either of the parties, the witness, the proceedings, or, the evidence, in support of an application for an individual grant of permission, then the Tribunal should consider with both parties whether in the circumstances it is appropriate for such an application to be made, and by reference to the overriding objective, whether permission to admit such evidence should instead be refused. In some cases it may be inappropriate to identify details of the proceedings or the disputed evidence before the Tribunal, the appellant, or, the witness, and in those cases an application should not be made. In that event the Tribunal must refuse to admit the proposed oral evidence.

15.24BF Whilst the request will be made in general terms, there is obviously a risk that the foreign country will insist on being told the specifics. In protection claims it will almost invariably be inappropriate to provide details of the proceedings if your witness is in the state from which she flees (see 15.24B above). You will therefore need to argue that the Tribunal should accept the evidence in writing and any attempt by the Home Office to undermine the witness's evidence by reference to the lack of oral evidence should be given minimal weight.15.24BG The Guidance Note observes that in the absence of an express response to the ToE from the State in question 'it is a matter for the ToE, alone, to determine whether, and if so when, the inference may be drawn that the country in question raises no objection to the proposed oral evidence being taken.' If the ToE decides that it cannot draw such an inference, the Tribunal must refuse to admit the proposed oral evidence.

15.24BH It also stresses the breadth of the judicial discretion as to whether to admit evidence from abroad and as such: 'even if there is no legal or diplomatic objection it will remain a matter of judicial discretion by reference to the overriding objective as to whether such oral evidence should be admitted.' Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) also recognised this:

The decision whether to grant the application is a judicial one. The judge making the decision will take into account the reasons supporting the application, any response from other parties and the content of the proposed evidence, as well as of the overriding objective of the rules. …

15.24BI The Guidance Note provides a non-exhaustive list of factors to be taken into account in balancing the prospect of delay occasioned by seeking to rely on oral evidence from abroad against the value of that evidence to the issues in dispute and whether reliance on written evidence and responses to interrogatories may be sufficient in the circumstances of each case

a) whether delay could be avoided altogether by the witness travelling to a third country where it is known there are no diplomatic objections to the giving of oral evidence,

b) whether in the light of the detailed witness statement filed in support of the application it is necessary for the witness to give oral evidence, (including those circumstances in which such oral evidence would not be determinative of the appeal),

c) whether oral evidence from the witness in question will be likely to materially add to the content of the detailed witness statement filed in support of the application, and,

d) whether the witness could address the disputed issues adequately by providing written answers to questions posed by the opposing party and authorised by the Tribunal

15.24BJ It will be important to address these factors in making any application to the Tribunal to rely on evidence from abroad, particularly in circumstances where there is likely to be a delay in the third state responding.

15.24C […]

15.24CA The original guidance on oral evidence from abroad in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) also contained an expectation that the 'distant site' would be a court or hearing centre in the foreign country, however, this was amended in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC) in response to the developments in the use of remote hearings since the Covid-19 pandemic:

(6) 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.

15.24CB The Tribunal in CJ (international video-link hearing: data protection) Jamaica [2019] UKUT 00126 (IAC) considered the claim of the appellant that his participation in the hearing (effectively under protest) by way of a video-link from the British High Commission in Kingston, Jamaica had breached, inter alia, data protection law. The Upper Tribunal dismissed the claim on the basis that the video link evidence between the British High Commission and the Tribunal did not involve the transfer of data to a third country, for the purposes of the General Data Protection Regulation and alternatively, even if it did, the transfer was lawful under the derogation in Article 49(1)(e) of the Regulation (transfer necessary for establishment, exercise or defence of legal claims). This was upheld on appeal to the Upper Tribunal and to the Court of appeal (Johnson v Secretary of State for the Home Department [2020] EWCA Civ 1032).

15.24D The formidable practical and financial obstacles which complying with this guidance in order to give evidence by video link would pose in the context of out of country appeals following certification under s94B were considered by the Supreme Court in R (Kiarie and Byndloss) v SSHD [2017] UKSC 42. These difficulties were among the reasons that the Supreme Court concluded that certification under s94B was unlawful in those cases (see, for a fuller discussion of s.94B, para 3.32A). As explained in the evidence given by the Assistant Director – Overseas Video Appeal Project (OVAP) lead in the Home Office in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC), following the Supreme Court's judgment in Kiarie, the Home Office considers itself to be under a duty to provide such appellants with a video facility to conduct their appeals. See further chapter 3.15.24DA It is noteworthy that the Court of Appeal's judgment in R (AM (Cameroon)) v AIT [2008] EWCA Civ 100 [2008] 1 WLR 2062 establishes a more flexible approach with which some of the guidance in Nare [2011] UKUT 443 (IAC) appears inconsistent. Permission to give evidence by telephone from the country of origin had been refused by the immigration judge because of "difficulty in verifying the identity of the witnesses at the other end and the costs implications". The Court of Appeal held that while such concerns were understandable, "It is obvious that where credibility is the issue live evidence going to that very issue which can be subjected to cross-examination must be more suitable than affidavit evidence and one would expect that if the practical difficulties could be overcome a reasonable judge would be prepared to reconsider the position" (para 36). The Court concluded "where the practical difficulties had been overcome, why not use telephonic communication which would, at the very least, have allowed some cross examination?" In Nare, the Tribunal unfortunately referred only to the permission judgment in that case when concluding that it did not affect its guidance. The qualification to the Nare guidance provided in Agbabiaka (evidence from abroad; Nare guidance) [2021] UKUT 00286 (IAC) aligns more closely with the approach of the Court of Appeal.

15.24DB Also of use is the guidance in ML (use of skype technology) [2013] EWHC 2091 (Fam) which identifies a relatively cheap means of taking video evidence from a witness who only has access to Skype rather than commercial video facilities which was considered acceptable to the High Court so should also be acceptable in the Tribunal. Indeed, in R (AH) v SSHD IJR [2015] UKUT 00481 (IAC), the evidence of one of the witnesses was given in the Upper Tribunal by Skype without any discussion or comment as to the appropriateness of this. As noted above, since the acceleration of the HMCTS reform programme in response to the Covid-19 pandemic, the use of video conferencing platforms, accessible by clicking on a live link alone, and most commonly via HMCTS' CVP, is now mainstream in the Tribunal. The Presidential Guidance Note 4 of 2022 indicates that only the following approved platforms may be used to take oral evidence from overseas by video link: the Video Hearing Platform, CVP, VHS, or, Microsoft Teams. Skype, or other platforms such as Zoom, will not be accepted. See further, chapter 7A on remote hearings.

15.24DC A hearing that does not take place in compliance with the rules on evidence from abroad, including the full consent of the State from which evidence will be given, is not automatically unlawful or a nullity: Raza v SSHD [2023] EWCA Civ 29. In that case, the Court held that even if a hearing which took place in the absence of evidence of consent from the foreign state, it would be a diplomatic issue rather than a legal one: para 76.

'Self-serving' evidence

15.25 Appellants often submit letters from friends, relatives, and colleagues in the country of origin which contain information material to the appeal. The HOPO will often allege that they are 'self-serving' - by which he appears to mean that they are put forward to advance the appellant's appeal. In Moyo v SSHD [2002] UKIAT 01104, the IAT stated that:

The only reason given by the Adjudicator for deciding to place no reliance on the letters submitted by the Appellant was that they were 'self serving'. This is not a good reason. If every document submitted by every party was to be rejected because it was 'self serving' it is likely that no documentary evidence would ever be admitted. Most documentary evidence is self serving in the sense that it assists the case of the party who submits it. The Adjudicator may have had better reasons for deciding not to place any reliance on the documents, but he has not said what these are and they are not obvious. (See also para 16.14.)

15.25A Similarly, in R (SS) v SSHD ("self-serving" statements) [2017] UKUT 00164 (IAC), observed that:

30. … The expression "self-serving" is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter from a third party may be "self-serving" because it bears the hallmarks of being written to order, in circumstances where the applicant's case is that the letter was a spontaneous warning.

31. In the present case, the reasons given in the decision letter for the father's letter being regarded as self-serving are because "it is from your father and does not demonstrate how you as an individual will face fear or persecution upon your return to Sri Lanka". The first reason falls foul of the point made at paragraph 28 of AK, where the Court of Appeal criticised the respondent for stating that "an affidavit from a family member cannot add probative or corroborative weight to your client's claim". A statement from a family member is, of course, capable of bearing weight. The issue is whether, looked at in the round, it does so in the particular case in question. For instance, a statement from a family member may be incapable of saving a claim which, in all other respects, lacks credibility. …

15.26 The only circumstances in which this issue may validly arise is if the document purports to have been produced for some other purpose unconnected to the appeal. If you are presented with a letter which purports to be an ordinary communication between your client and friend or family, you need to get it translated and consider what the Tribunal will make of it. Is it worded in a way which appears unnatural or inappropriate in the context of the relationship between your client and the writer? Is it informing your client of matters which she might be expected to know already, or giving advice that appears obvious or unnecessary? Or does it include the sort of material one might expect in an ordinary letter? It is of course perfectly possible that what may appear contrived to the Tribunal is simply a result of translation and cultural differences. However, it is unwise to rely upon the Tribunal making such allowance, at least in the absence of expert evidence explaining the point. A common issue that arises is where letters are written in English between relations or friends whose first language is not English (and therefore, whatever their content, appear to have been written solely for the purpose of the appeal hearing). In such cases it is particularly important to consider whether there is a plausible explanation, such as that English is seen as the language of educated people, or that your client's mother tongue is vernacular and not generally written.

15.27 If you have concerns, question your client about them. She may be able to explain them. On the other hand, she may readily accept that the letter was written with the court case in mind. She may simply have assumed that a letter to herself was the appropriate means of presenting information from her relative, and not appreciated that the Tribunal might suspect that its presentation in the form of an ordinary letter was an attempt to mislead it.

15.28 There is nothing wrong with people from the country of origin giving evidence in the appeal. Indeed, if it is relevant, and particularly if no-one in the UK can give first hand evidence, then they should do so. But there is no reason not to present that evidence in proper form - i.e. a witness statement - unless that is not practically possible. The exception is where it is necessary to establish in evidence the receipt of a particular letter in order to explain your client's contemporaneous state of mind.

15.29 You can take the statement over the telephone (unless, of course, you are able to travel to the country of origin to take the statement or instruct a local agent to do so). If practical, the statement should be translated and provided to the witness by post, fax or e-mail, who should then return a signed copy. If that is not possible, then you should have the completed statement translated to the witness over the telephone, including a statement of truth (see para 12.65) and a paragraph explaining that he is not in a position to sign it, but has had it translated, and approves its use in your client's appeal. In any case, you should also make a short witness statement explaining the circumstances in which you were able to contact the witness, and how the statement was taken and approved. Even where you have been able to e-mail or fax a copy to the witness and he has signed it, a statement from you explaining how the statement was taken will increase the weight which the Tribunal will attach to it. Also, the fact that the evidence is presented in the form of a witness statement taken by a lawyer in itself adds weight. It demonstrates that you have interviewed the witness, and therefore decreases the risk that the witness' evidence (sometimes even his existence) may be questioned by the Tribunal if it forms an adverse view of the appellant's evidence.

15.30 It will usually be apparent why the witness is unable to attend the hearing. (Indeed, if he is prepared to travel to the UK to attend the hearing, you should take care to address any suspicion that the ability to do so is inconsistent with your case.) (See 15.24 and 15.24A and above for the guidance on witness giving evidence from abroad).

15.31 The HOPO may of course argue that the evidence of a family member should be discounted. But it is an error to discount such evidence as a matter of course. In Quijano (13693), the adjudicator had said that:

No assistance is derived from the testimony of the Appellant's brother, whose interest in the success of the appeal is so manifest as greatly to diminish the value of his evidence and whose credibility I am therefore not prepared to accept.

15.32 The IAT held that:

An adjudicator cannot dismiss evidence simply because the witness has an interest in the particular appeal. Were that so, no evidence of any appellant would ever be believed. The evidence must be assessed just as must an appellant's evidence and, while an interest in the proceedings may be a factor it certainly cannot ever be an exclusive ground for dismissing the accuracy of the evidence.

15.32A See also the comments made by the Tribunal in SS (self-serving statements) (para 15.25 above). In AK (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 535, to which the Upper Tribunal referred in SS, the Court of Appeal found that a suggestion by the Home Office (in a letter rejecting a fresh claim as having no realistic prospect of success on appeal) that "An affidavit from a family member cannot add probative or corroborative weight to your client's claim" was a misdirection. Toulson LJ observed that:

29.The matter may be tested in this way: imagine that before an independent tribunal the appellant's representative said that he wished to rely on an affidavit from the appellant's mother. Can it be imagined that the tribunal would refuse to consider the document on the basis that it came from someone who was parti pris? The question answers itself. A tribunal would no more have taken that course than it would have refused to consider evidence from the appellant himself on the basis that he was partisan.

15.33 The point at para 15.28 also applies to evidence from lawyers and others who are not personally connected to your client but who have material evidence to give. If the evidence is coming from a lawyer, or someone holding a formal position, e.g. in an NGO, it is useful to submit a letter from the witness addressed to you on his letterhead (which can simply confirm his witness statement). But a witness statement from him in proper form should again increase the weight of his evidence (and will underscore the point that his evidence cannot be rejected unless the Tribunal has grounds to make an adverse credibility finding against him). Once again, your involvement in obtaining the evidence can only decrease the risk of it being blighted by the view the Tribunal forms of the appellant's own evidence.

Drafting the statement

15.34 Refer to chapter 12 on preparing the appellant's witness statement for general advice. It is particularly important to keep to the forefront of your mind what the witness is adding to your case, and to ensure that the witness' statement is directed towards those points. He should be clear about what he knows and does not know. If it is relevant for him to indicate his fears concerning your client's expulsion, he should be clear upon what he bases these fears.

15.35 This is particularly so if you will be calling the witness. If the statement wanders into less relevant matters, you will be in a less strong position to object if the HOPO embarks on a more general fishing expedition for discrepancies. To avoid this, the statement should clearly delineate the areas in which the witness can assist (for example, by pointing out that he has no detailed knowledge of the appellant's past detentions). Witnesses of fact should generally not purport to be country experts.

Whether to call oral evidence without a statement

15.36 Sometimes, a witness will come to light unexpectedly when there is no time to prepare a witness statement. You should never consider calling a witness to give oral evidence without seeing her and forming an opinion of her ability to give evidence. You should check what the response will be to foreseeable lines of cross-examination.

15.36A Rule 51(4) of the 2005 Procedure Rules required the Tribunal not to consider written evidence that was not submitted in accordance with directions "unless satisfied that there are good reasons to do so". There is no equivalent provision in the 2014 Procedure Rules, although the Tribunal has a general discretion to take such action as it considers just in response to any failure to comply with its directions (rule 6(2)). Even when rule 51(4) applied, in MA (rule 51(4) - not oral evidence) Somalia [2007] UKAIT 00079, the Tribunal held that a witness could not be prevented giving oral evidence because a witness statement had not been served in accordance with the directions (see para 35.28A). It remains preferable to comply with the directions if possible. The Tribunal warned in MA that:

18. The fact that rule 51(4) cannot be employed to prevent a person from giving oral evidence before the Tribunal does not in any way compel the Tribunal to accord the same weight to the evidence of a witness whose written statement has arrived too late to enable the respondent to carry out any relevant checks as regards the witness or the substance of his or her evidence, as would be the case where the witness statement has properly been served in accordance with the timescale set by the Tribunal's directions. On the contrary, it is open to the respondent to submit in such a case that the weight to be accorded the witness's evidence should be limited.

15.37 Very occasionally, you might decide to call an additional witness after the appellant has given evidence. This might happen when an appellant who you thought could give satisfactory evidence has actually given incoherent and inconsistent evidence or has failed to establish a vital fact. If there is someone available who you think could give better first hand evidence in the areas where the appellant has failed, you might now consider calling him. However, such a course is fraught with obvious danger, and should only really be considered when, after the appellant's evidence, you think you have little to lose. By far the better situation would be if you realised beforehand that your client would not give useful evidence and acted accordingly.

15.38 If you get yourself into the situation where you have not prepared a witness but decide due to unforeseen events during the hearing that you may have to call her, in the vast majority of cases you should request an adjournment, rather than simply calling her and hoping for the best.

15.39 Witnesses of fact will normally be expected to remain outside the hearing room until their turn comes to give evidence.