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Does every Zoom witness abroad need foreign state permission to dial in?
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Among the changes brought about by the pandemic has been greatly increased use of videoconferencing technology by immigration tribunals, including for the taking of evidence. This has made it much more viable for live evidence of appellants and other witnesses to be heard, including from outside the United Kingdom.
It has also brought to the fore the question of whether there are legal restrictions on giving evidence in another jurisdiction for the purposes of proceedings in the UK which require asking the national authorities in that jurisdiction for permission in every case. There is substantial authority that, at least when it comes to willing litigants or witnesses, there is in fact no requirement to seek permission.
Immigration tribunal guidance on video evidence from overseas
In 2011 guidance was provided by Mr Justice Blake in a case called Nare (evidence by electronic means) Zimbabwe  UKUT 443 (IAC). Among other things, he suggested that
the party seeking [to give video evidence] must be in a position to inform the Tribunal that the relevant foreign government raises no objection to live evidence being given from within its jurisdiction, to a Tribunal or court in the United Kingdom… Enquiries of this nature may be addressed to the Foreign and Commonwealth Office…
This guidance was referred to by Lord Wilson in R (Kiarie and Byndloss) v SSHD  UKSC 42 in the context of appeals from deportees removed before their appeals were heard. Later Lord Justice Irwin, in Ahsan v SSHD  EWCA Civ 2009, referred to Nare as presenting “quite rigorous requirements for the arrangements that need to be in place when a video-link is used”.
Some years on, the tribunal is routinely referring appellants in any case it believes may involve evidence from abroad to the Foreign Commonwealth and Development Office (FCDO) guidance on Service of documents and taking of evidence. The tribunal’s directions state:
It is the representatives that have the responsibility for accessing and following the current FCDO guidance, rather than FtTIAC. The FtTIAC expects representatives proposing to rely upon oral evidence from overseas to demonstrate prior to the hearing that they have followed the FCDO guidance and the representative proposing to call oral evidence from overseas must request a directions hearing before a judge in order to do so, and/or sort out any consequential directions.
The FCDO guidance states that individuals should contact an email address provided, SOPEnquiries@fcdo.gov.uk, with “brief details” of the case. But they are also told to provide:
- the names and addresses of the parties to the proceedings and their representatives
- the nature of the proceedings… giving a full summary of the pending action
- the names and addresses of the persons to be examined…
- the specific questions to be put to the persons to be examined or specific statement of the subject matter…
- if documents are to be produced a specific list of the documents…
Somewhat understandably, given the sheer number of enquiries it is likely receiving, the FCDO has been less than helpful in many cases, and now frequently declines assistance or fails to respond. But its guidance seems to erect still further practical obstacles (as well as what should be serious reservations about the personal information demanded).
These FCDO constraints on video evidence are in practice so strict that the benefit of such evidence cannot be delivered in many cases, or possibly at all. How, for instance, can an appellant tell the FCDO what questions a Home Office Presenting Officer is going to ask when the case has not even been assigned to one? The cost of compliance or attempted compliance will in practice be significant, prejudicing less well-to-do or well-represented appellants. And there is a risk that anyone not giving evidence by video may be thought less credible, having failed (perhaps deliberately) to overcome the obstacles to video evidence.
Is permission really needed to hear video evidence from abroad?
The FCDO guidance appears obviously based on an international treaty, the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters. Under Article 1 of the Convention:
in civil or commercial matters a judicial authority of a Contracting State may, in accordance with the provisions of the law of that State, request the competent authority of another Contracting State, by means of a Letter of Request, to obtain evidence, or to perform some other judicial act.
Underlying everything is that the Convention only applies if the foreign state is being asked to perform a “judicial act”. For instance, where in aid of litigation in Country A the authorities in Country B are asked to order discovery of documents in Country B, or to compel an unwilling witness in Country B to give evidence.
That is irrelevant to the question that arises where a party in Country A wishes to adduce, in proceedings in Country A, evidence of a willing witness in Country B by video link or similar means. No judicial act is sought from Country B’s authorities in that context.
Such cases are addressed by the leading work on conflict of laws: Dicey, Morris and Collins on the Conflict of Laws (15th edition, 2012), at Rule 23(4). It states that:
Nothing in this Rule prevents a party from obtaining evidence from a third party abroad without compulsion of law, provided that this is not contrary to the law of the place where the evidence is to be obtained. [§8R-067]
The textbook cites a decision of the Federal Court of Australia in Joyce v Sunland Waterfront (BUI) Ltd  FCAFC 95, concerning whether a willing witness in the United Arab Emirates could be heard via video link in Australia where no specific permission was given by the UAE authorities. On the question of whether this represented a breach of the sovereignty of the UAE, the court indicated (at paragraph 37) that it had “difficulty in understanding why a person who has submitted to the jurisdiction of the Court as a party, should not be able to agree to a procedure to facilitate resolution of the relevant dispute, even if steps are to be taken in a foreign country, provided that they are not forbidden by the law of that country”.
Time for reflection?
In light of the expressly limited scope of the 1970 Convention, and what might be thought an authoritative statement in Dicey, Morris, and Collins, the tribunal’s and FCDO’s apparent demands for extensive steps before evidence of a willing person can be taken by video might seem a mistake, with the closed silo of immigration adjudication unfamiliar with the actual requirements of conflict of laws. And if those requirements are based on such a mistake, in general or in a particular case, the fairness of any affected proceedings may have to be reviewed with particular care.
As to Nare, it does not have to be denounced as wrong. The permission requirement might be appropriate if a UK court were seeking to function as such in another state, with staff supervising the giving of evidence, as seems to have been envisioned. But that is very different from someone in South Africa or India connecting to a video link to give evidence to a tribunal in the UK.