1. The Upper Tribunal (Administrative Appeals Chamber) (“AAC”) is primarily
concerned with appeals on questions of law and so its judges do not regularly
take evidence from a party or a witness.
2. In those cases in which a party is entitled or has been granted permission to
give or call evidence, the following guidance applies. It follows the approach of
the Upper Tribunal (Immigration and Asylum Chamber) in Agbabiaka (evidence
from abroad; Nare guidance)  UKUT 286 (IAC) concerning the procedure
to be followed when a party to a case wishes to rely upon oral evidence given
by video or telephone by a person (including the party themselves) who is in
the territory of a Nation State other than the United Kingdom.
When permission is needed
3. The decision includes the following:
“There has long been an understanding among Nation States that one State
should not seek to exercise the powers of its courts within the territory of
another, without having the permission of that other State to do so. Any
breach of that understanding by a court or tribunal in the United Kingdom
risks damaging this country’s diplomatic relations with other States and is,
thus, contrary to the public interest”
“Whenever the issue arises in a tribunal about the taking of evidence from
outside the United Kingdom […] what the Tribunal needs to know is whether
it may take such evidence without damaging the United Kingdom’s
diplomatic relationship with the other country
. […] it is not for this (or any
other) tribunal to form its own view of what may, or may not, damage the
United Kingdom’s relations with a foreign State”
4. The decision records – and treats as determinative – the stance of the Foreign,
Commonwealth and Development Office (“FCDO”) that only the giving of oral
evidence from a Nation State requires the permission of that State. Permission
is not needed for written evidence, or for submissions (whether oral or written).
5. The AAC may consider that there is too much risk that a litigant making oral
submissions will stray into giving evidence, and so may decide in such a case
that permission must be sought as a precaution.
The process for seeking permission
6. On 29 November 2021 FCDO established a new “Taking of Evidence Unit”
(“ToE”). The ToE will ascertain the stance of different overseas governments to
the taking of oral evidence from individuals within their territory. The response
of the ToE about the stance of a particular overseas government will be
7. Representations made prior to 29 November 2021 as to whether a particular
government has any objection to the taking of oral evidence from an individual
within their jurisdiction should no longer be relied on.
8. The decision states that a party wishing to rely on oral evidence from a witness
in a Nation State other than the UK must contact the ToE. In order to make the
process as efficient and user-friendly as possible, HMCTS will contact the ToE
on behalf of any party who notifies the AAC that they want to rely on oral
evidence from a person abroad, so all that that party needs to do is notify the
a. the name of that person;
b. the country the person would be giving evidence from; and
c. what the evidence would be about.
9. If the ToE does not already hold information on the country in question, the ToE
will need to raise an enquiry with the British Embassy or British High
Commission in that country.
10.It can take months to receive a response to an enquiry via an embassy or high
commission, so the AAC must be notified as soon as it is apparent that oral
evidence from a witness abroad may be needed.
If permission is delayed or refused
11.The amount of time a case has been held up at the ToE stage will need to be
kept under review by the AAC. It will always be a matter for judicial discretion
by reference to the overriding objective as to whether the listing of a case should
be delayed to allow such enquiries to proceed, or should continue to be further
delayed to allow such enquiries to be concluded.
12.If delay becomes an issue, the AAC may need to consider alternatives to oral
evidence being given from the foreign country. This may include probing the
rationale for that evidence; and considering whether the evidence could be
given in writing (including by reference to written questions put by the other
party or by the Judge); and whether the witness can travel either to the UK or
to a third country where it is known there are no diplomatic objections to the
giving of oral evidence. These matters would also need to be considered by the
AAC in the event that permission is refused by the foreign country.
o the satisfaction of
THE HON MRS JUSTICE FARBEY
2 August 2022