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New tribunal procedures relating to oral evidence given from abroad


Published: 19 Apr 2022 Update History

A new Taking of Evidence Unit has been established that needs to approve the taking of oral evidence from abroad to manage any potential risk of damage to diplomatic relations between the UK and the territory in which the witness is based.

Following the outcome of the Upper Tribunal case "Agbabiaka" (evidence from abroad; Nare guidance) [2021] UKUT 286 (IAC), a new procedure must be followed when a party to a case wishes to rely upon oral evidence given by video or telephone, by a person who is in the territory of a Nation State other than the United Kingdom. The procedure does not apply to written evidence, or to submissions (whether oral or written).

On 29 November 2021, the Foreign, Commonwealth and Development Office established a new Taking of Evidence Unit (ToE). The ToE will ascertain the stance of overseas governments to the taking of oral evidence from individuals within their territory and will then either permit or refuse such evidence to be taken.

To make the process as efficient as possible, HM Courts & Tribunals Service (HMCTS) will contact the ToE on behalf of anyone wishing to give or rely on oral evidence from a person abroad. In some cases, the ToE may need to raise an enquiry with the British Embassy or British High Commission in the territory concerned which may take months to be responded to. As such, it is recommended that any referrals are made via HMCTS as soon as possible.

The details to be provided to the Tax Chamber of the First-tier Tribunal with the subject line or header “Evidence from Abroad” are:

  • the name of the person that they want to give oral evidence from abroad;
  • the country that the person would be giving evidence from; and
  • what the evidence would be about.

Further details can be found here.

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