Oral Evidence From Abroad In The Immigration Tribunal

• Published date: 03 December 2021
• Subject Matter: Litigation, Mediation & Arbitration, Immigration, Trials & Appeals & Compensation, General Immigration
• Law Firm: Richmond Chambers Immigration Barristers
• Author: Mr Alex Papasotiriou

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...