Secretary of State for the Home Department v Modsurudeen Kehinde Agbabiaka

Oral evidence given by video from a foreign State to the First-tier Tribunal requires that State’s permission, whether individual or general. The party seeking to rely on the evidence must make timely enquiries through the Foreign, Commonwealth and Development Office’s Taking of Evidence Unit and identify the nature of the proposed evidence.

Written evidence and oral submissions do not require that process. The Tribunal must, however, scrutinise an appellant’s assertion that they will make submissions only. In managing delay, the Tribunal must apply the overriding objective and consider suitable alternatives to overseas oral evidence. Remote evidence need not generally be given from a court or tribunal hearing centre, but its setting may affect its quality and weight.

The respondent’s entry-clearance application was refused. He appealed to the First-tier Tribunal under the Nationality, Immigration and Asylum Act 2002 and gave oral evidence by video from Nigeria. The Secretary of State objected because no adequate confirmation had been obtained that Nigeria did not object to evidence being taken from its territory.

The First-tier Tribunal later received an FCDO communication and allowed the appeal. The Secretary of State obtained permission to appeal, but subsequently ceased to challenge that result and granted entry clearance. The Upper Tribunal nevertheless considered the wider question of evidence and submissions given from abroad, before consenting to withdrawal of the appeal.

1. The Upper Tribunal consented to the withdrawal of the Secretary of State’s appeal. Entry clearance had been granted and the respondent was in the United Kingdom.

2. There is an international understanding that a State should not exercise its judicial powers within another State without permission. Taking oral evidence from abroad without the foreign State’s permission risks harm to diplomatic relations and, consequently, to the public interest and the administration of justice. The Tribunal must therefore ascertain whether taking the evidence would be permissible without that harm.

3. The FCDO’s view is determinative of whether oral evidence or submissions create that diplomatic concern. Its position is that permission is required for oral evidence, but not for written evidence or oral submissions. A tribunal should nevertheless be cautious where an unrepresented appellant proposes to make submissions only, since the distinction may not be maintained in practice.

4. A party wishing to call oral evidence from abroad must notify the First-tier Tribunal early, identify its nature, and make the necessary enquiries through the FCDO Taking of Evidence Unit. A witness statement is not required at that preliminary stage; a sufficient gist is enough. The party seeking the evidence, rather than the Secretary of State, ordinarily bears responsibility for that process.

5. The First-tier Tribunal’s overriding-objective duty is dynamic. It must keep any FCDO delay under review and consider alternatives, including written evidence, written questions, evidence from another State, or, exceptionally, admission to the United Kingdom. Each case depends on its merits.

6. The guidance in Nare (evidence by electronic means) Zimbabwe [2011] UKUT 00443 (IAC) is amended accordingly. There is no longer a general requirement that remote evidence be given from a court or tribunal hearing centre, although the Tribunal must assess risks arising from the absence of on-site supervision when evaluating the evidence.

• Upper Tribunal (Immigration and Asylum Chamber): consented under Rule 17 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to withdrawal of the Secretary of State’s appeal, while giving amended guidance on overseas oral evidence.

• First-tier Tribunal: allowed the respondent’s appeal against refusal of entry clearance after receiving FCDO information concerning Nigeria’s position on video evidence. No citation was stated.