The Secretary of State for the Home Department v Thabang Nare

A party seeking to adduce oral evidence by electronic means must justify that departure from the ordinary model of live evidence in the hearing room. The decision is a judicial one under the Asylum and Immigration Tribunal (Procedure) Rules 2005. It requires regard to the need for the link, the integrity and supervision of the distant site, effective access for all parties, and the ability to test and assess the evidence.

No party has a right to call electronic evidence. Directions should ordinarily ensure formal arrangements, timely notice, and compliance with conditions designed to secure fairness. However, an error in permitting telephone evidence is immaterial where the opposing party elects not to cross-examine and cannot show that cross-examination by telephone caused any disadvantage.

The claimant, a Zimbabwean national, appealed against the refusal of his further asylum submissions. Before the First-tier Tribunal, Immigration Judge Zucker allowed the appeal after receiving the claimant’s sister’s evidence by telephone. Her evidence was relevant because an earlier appeal by the claimant had been dismissed, whereas her own asylum appeal had succeeded on related facts.

The Secretary of State appealed, contending that the judge had wrongly permitted telephone evidence and had thereby prevented proper testing of the sister’s evidence. The Presenting Officer had declined to cross-examine her by telephone. The central issues were whether the First-tier Tribunal’s procedure involved a material error of law and when oral evidence may properly be received by electronic means.

1. Appeal dismissed. Any procedural error in allowing the claimant’s sister to give evidence by telephone was wholly immaterial. The Presenting Officer chose not to cross-examine her and was not prevented from doing so. The sister’s evidence was therefore unchallenged, and the Secretary of State could not establish that telephone cross-examination caused a disadvantage or material prejudice.

2. The First-tier Tribunal nevertheless erred by apparently accepting the request too readily. Under Rule 45(4)(h) of the Asylum and Immigration Tribunal (Procedure) Rules 2005, a direction permitting evidence by electronic means is a judicial decision. It should be made by a judge after proper consideration of the issues, rather than treated as an administrative arrangement.

3. R (AM Cameroon) v SSHD [2007] EWCA Civ 131 did not require routine directions for oral evidence to be given away from the hearing room. It confirmed that the discretion must be exercised judicially.

4. Live evidence in the hearing room remains the usual common-law model. A party seeking an electronic link must show that it is in the interests of justice, particularly having regard to the other parties’ ability to challenge the evidence. That party must make and fund suitable arrangements. The Tribunal should consider the reason for non-attendance, supervision and formality at the distant site, the reliability and equality of access to the link, interpreter arrangements, and any effect on assessment of challenged evidence. A video link will generally be more suitable than a telephone link.

5. The Tribunal issued non-exhaustive procedural guidance. The First-tier Tribunal’s determination allowing the claimant’s appeal remained in force.

• Upper Tribunal (Immigration and Asylum Chamber) The Secretary of State’s appeal was dismissed. The Upper Tribunal held that any error in receiving telephone evidence was immaterial.
• First-tier Tribunal Immigration Judge Zucker allowed the claimant’s asylum appeal. That determination stood.