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Tribunal on recorded video evidence and Article 8 considerations


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Official headnote to Lama (video recorded evidence -weight – Art 8 ECHR : Nepal) [2017] UKUT 16 (IAC):

(i) Video recorded evidence from witnesses is admissible in the Upper Tribunal. Its weight will vary according to the context.

(ii) Alertness among practitioners and parties to the Upper Tribunal’s standard pre-hearing Directions and compliance therewith are crucial.

(iii) There are no hard and fast rules as to what constitutes family life within the compass of Article 8 ECHR.

(iv) A person’s value to the community is a factor which may legitimately be considered in the Article 8 proportionality balancing exercise.

Pre-recorded video would be particularly useful for an entry clearance appeal, it is worth pointing out. Anyone can do it these days – all you need is a smart phone. Such evidence is more likely to have impact than a witness statement or letter of support. It is also easy to stitch together a series of video recordings into a single video montage, which would be a good way of presenting such evidence.

Also well worth reading the rest of the determination on family life and Article 8. For example, the case emphasises that the strict Kugathas approach has been somewhat softened:

Thus, at its heart, family life denotes real or committed personal support between or among the persons concerned. Such persons need not necessarily be related by blood and, in that sense, are not a family in the traditional or conventional senses. However, they are readily embraced by one of the dictionary definitions of “family”, namely ” a group of things that are alike in some way”. Mere likeness is not, of course, sufficient for Article 8 purposes. The “likeness”, in Article 8 terms, is constituted by committed support, emotional bonds and, very frequently, a strong sense of duty.

On the facts, a finding of family life was made between two unrelated men (the appellant was the friend and primary carer to a disabled gentleman) and the tribunal considered factors other than those set out in the statutory human rights considerations.

Source: Lama (video recorded evidence -weight – Art 8 ECHR : Nepal) (Rev 1) [2017] UKUT 16 (IAC) (21 February 2017)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.