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Upper Tribunal revisits issue of permission for video evidence from abroad

Upper Tribunal revisits issue of permission for video evidence from abroad

Last week I set out some observations on the taking of evidence by videoconference from abroad. I pointed to substantial authority that, in the case of the willing litigant or witness outside the UK dialling up on Zoom, where no judicial assistance (such as a witness order) is required in the other state, there is no requirement that express permission be obtained from that state. This authority includes the leading text Dicey, Morris and Collins on the Conflict of Laws and the Australian courts as recently as Roberts-Smith v Fairfax Media Publications Pty Ltd (No 10) [2021] FCA 317.

Two days later, on 17 November 2021, the Upper Tribunal published its decision in Agbabiaka (evidence from abroad, Nare guidance) Nigeria [2021] UKUT 286 (IAC). The tribunal found that a party seeking to have oral evidence given from abroad needs to “make the necessary enquiries” with the Foreign, Commonwealth and Development Office to check whether the foreign government in question has any objection. The full headnote is set out below.

Need to seek permission from foreign government

The Upper Tribunal appears to have assumed — on the basis of a representation from the FCDO — that allowing video evidence from another country without permission Is a “breach of that understanding” that “one State should not seek to exercise the powers of its courts within the territory of another”. The FCDO believes that “the taking of oral evidence, without the requisite permission” is “problematic”. Conversely, the making of legal submissions is said not to be problematic.

The tribunal found:

On this issue… the view of the FCDO is determinative. At least in the present context, it is not for this (or any other) tribunal to form its own view of what may, or may not, damage the United Kingdom’s relations with a foreign State. Accordingly, the steps which we describe later [to check whether the foreign state objects] do not need to be taken where the Tribunal is satisfied that the person who will be speaking to it by video from abroad will be making submissions and not giving evidence.

That obviously suggests that it is a breach of sovereignty to take video evidence from another state. So Agbabiaka seems to accept that proposition — which Dicey, Morris and Collins and the Australian courts reject.

Unfortunately, it is not clear from Agbabiaka whether the FCDO is actually saying that the taking of video evidence without express permission is in breach of international law. “Problematic” might refer to something that does not offend international comity at all. This is surely something for the Upper Tribunal to consider and address. Nor is it clear in Agbabiaka why any distinction arises between giving evidence and making submissions.

The judgment cites a recent High Court decision, Interdigital Technology Corporation & ors v Lenovo Group Ltd & ors [2021] EWHC 255 (Pat), which involved an expert witness potentially giving video evidence from Germany. A senior German lawyer advised that German law requires German court permission before evidence can lawfully be given to a court elsewhere by video link from Germany. The court held that “an important factor to be taken into account in the exercise of the discretion… is whether, if permission were given, there would be a significant risk that it would lead to a breach of German law”. It altered the previous permission, adding a requirement for the permission of the German court.

The High Court’s reasoning in Interdigital obviously has considerable force. But so does the difference in circumstances. The defendant had been required to demonstrate, to the civil standard of proof, that German law expected an order to be sought of the German court. The Interdigital decision certainly does not suggest that absent any such evidence from a defendant, every claimant has to secure foreign judicial cooperation (or advice of a senior lawyer that this is not required in that jurisdiction) even where a witness is wholly willing.

Agbabiaka therefore leaves hanging very substantial questions, particularly in light of potentially distinguishing features in the Interdigital decision, and the legal authorities pointing the other way.

Process for seeking permission 

The Upper Tribunal also endorsed the permission process envisioned by the FCDO, in which a party wishing to adduce evidence by video link from abroad will contact the “Taking of Evidence Unit”. The requestor will be told of any check in the last five years, as to whether permission is required in Country X for evidence by video to the UK, and the result. Only if there has been none (or, implicitly, if the requestor wishes a fresh check) will a consular fee of £150 for a new check apply.

That process leaves obvious questions, such as how much detail of the underlying advice or diplomatic communications will be provided to an unsuccessful requestor.

But for all this, there may be a silver lining to Agbabiaka, including the following factors.

First, under the permission process there will be a single point of contact, generally without a fee involved. This frees parties, witnesses and representatives from most worries about whether and how to embark on dramatic or costly measures to seek foreign state permission or legal advice concerning foreign laws.

Second, contacting the Taking of Evidence Unit is all that the tribunal expects. Parties or witnesses do not face the risk of adverse judgment on their motivations or credibility if they fail to embark on difficult or intangible further steps.

Third, this process does not make the same demands as previous FCDO guidance, which the tribunal has been treating as mandatory. It implied the possibility of extensive disclosure to the foreign state (“the nature of the proceedings… a full summary of the pending action… names and addresses of the persons to be examined”, etc). These requirements presumably must now be abandoned, because Agbabiaka makes clear that the 1970 Hague Convention, to which they respond, is not in issue. The Taking of Evidence Unit process does not make any equivalent demand.

The official headnote

(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.

(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.

(7) The guidance given by the Upper Tribunal in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 443 (IAC) is amended to the above extent.

Eric Fripp is a barrister at The 36 Group. He has appeared in many leading cases concerning refugees, immigration, nationality, and human rights.