Permission needs to be properly sought for video link evidence from abroad

A judgment in the Court of Appeal confirms that a country’s permission needs to be properly sought before video link evidence can be heard from someone in that country. The case is Raza v Secretary of State for the Home Department [2023] EWCA Civ 29. 

The First-tier Tribunal considered, separately from the merits of Mr Raza’s appeal, whether he could have a fair appeal if he took part in the hearing remotely from Pakistan. The court held that he could. The Court of Appeal considered whether the First-tier Tribunal’s hearing was unlawful because no adequate evidence was provided to show that the authorities in Pakistan had permitted a hearing by video link.

The First-tier Tribunal had to consider whether Mr Raza could have a fair and effective appeal via video link, rather than being brought back to the UK. The court concluded that he could. On appeal, the Upper Tribunal held that there was no error of law in the First-tier Tribunal’s determination that evidence could be taken via video link from Pakistan. 

The court was show a document from the Deputy High Commissioner in Islamabad. A letter from a law firm in Islamabad also confirmed that there was no legal barrier, which was corroborated by a law firm in London. The Pakistan High Commission in London had also been notified and no objections had been raised. Mr Raza argued that the hearing was unlawful because whilst the authorities had been notified and had not objected to the hearing via video link, they had also not positively agreed to it. 

The Secretary of State accepted that taking evidence in the territory of another country potentially infringed its sovereignty. There are potential diplomatic and legal consequences of doing so. But she contested that most of these difficulties were considered in the evidence before the court. 

The primary question for the Court of Appeal was whether any adequate evidence had been provided that confirmed that the authorities in Pakistan had permitted the hearing via video link. The Court considered that there was no provision or rule in UK domestic law that showed that the First-tier Tribunal’s hearing was unlawful. The 2002 Act expressly requires some appeals to be made from or continued from abroad:

“76. The primary question for this Court is whether there is any provision or rule of domestic law which shows that the [First-tier Tribunal] hearing was unlawful and a nullity. There is none. The 2002 Act expressly requires some appeals to be made from, and some to be continued from, abroad. The 2002 Act does not provide that the lawfulness of such appeals depends on any condition, such as the obtaining of permission from a foreign state. The Rules assume that a hearing can be conducted partly by video link. The Rules do not provide for any further conditions in relation to the taking of evidence from abroad. Neither Nare nor Agbabiaka suggests that the taking of video evidence from abroad without the permission of the state concerned is unlawful, or that it makes the hearing a nullity. Agbabiaka suggests that such a hearing might be contrary to the public interest because of its potential to damage international relations, and, thus contrary to the interests of justice, but that is a different point. I accept Mr Kovats’s submission that the sanctions for such conduct are diplomatic, not legal.

77. I do not consider that the evidence about Pakistani law is relevant to the question whether, under domestic law, the hearing was unlawful or a nullity. In case I am wrong about that, I will briefly consider that evidence. I accept that the evidence was terse, but its substance was not challenged (other than by reference to its claimed inadequacy). I consider that it was a sufficient basis for the [First-tier Tribunal’s] conclusion (if that conclusion was necessary) that the hearing was not prohibited by any provision of Pakistani law.

78. If the hearing was lawful and not a nullity, the only other way in which it could be impugned is on the grounds that it was unfair. A has, however, been refused permission to argue, on this appeal, that the hearing was unfair. I will say no more than that the [First-tier Tribunal] was in the best position to judge whether the fact that A’s evidence was taken by video link made his appeal unfair or ineffective. If my view on this point is necessary, I am satisfied that the hearing was fair, for the reasons given by the [First-tier Tribunal]…”

The question of lawfulness of giving evidence via video link from Pakistan, under Pakistani law is distinct from the question of lawfulness of receiving evidence in the UK under UK law. Where there is evidence presented before the court that there is a real risk of contravening a foreign country’s law by giving evidence in this way, the court may take a different view, and/or impose conditions on the permission to give evidence from abroad. Either way, Mr Raza’s case highlights the need to seek out proper and sufficient permission for granting video link evidence from another country.