A decision by the Court of Appeal confirms that sufficient permission must be obtained before video connection testimony from a witness located in another country can be heard. Raza v. Secretary of State for the Home Department [2023] EWCA Civ 29 is the matter at hand.
Separate from the grounds of Mr. Raza’s appeal, the First-tier Tribunal evaluated whether he could have a fair appeal if he participated in the hearing remotely from Pakistan. According to the judge, he could. Since there was insufficient proof that the Pakistani authorities had approved a video connection hearing, the Court of Appeal considered whether the First-tier Tribunal’s hearing was illegal.
Instead of having Mr. Raza transported back to the UK, the First-tier Tribunal had to decide if he could have a fair and successful appeal through video link. He could, the court determined. The First-tier Tribunal’s decision to allow video links to be used to obtain evidence from Pakistan was upheld by the Upper Tribunal following an appeal, according to the Upper Tribunal.
A paper from the Deputy High Commissioner in Islamabad was presented to the court. There was no legal obstacle, according to a letter from a law firm in Islamabad, which was supported by one from a law company in London. No concerns had been voiced even though the Pakistan High Commission in London had also been informed. Mr. Raza claimed that the hearing was illegal because, despite notification and the absence of objections, the authorities had not formally approved the video connection hearing.
The Secretary of State acknowledged that gathering evidence on another nation’s soil might violate that nation’s sovereignty. Doing so could have negative diplomatic and legal effects. She disputed, however, that the majority of these issues were taken into account in the court’s testimony.
The Court of Appeal’s main concern was whether sufficient evidence had been presented to show that the Pakistani government had approved the video link hearing. According to the Court, there was no clause or regulation in UK domestic law that demonstrated that the First-tier Tribunal’s hearing was improper. The 2002 Act specifically mandates that certain appeals be filed or continued from abroad:
76. The primary question for this Court is whether there is any provision or rule of domestic law which shows that the [First-tier Tribunal] hearing was unlawful and a nullity. There is none. The 2002 Act expressly requires some appeals to be made from, and some to be continued from, abroad. The 2002 Act does not provide that the lawfulness of such appeals depends on any condition, such as the obtaining of permission from a foreign state. The Rules assume that a hearing can be conducted partly by video link. The Rules do not provide for any further conditions in relation to the taking of evidence from abroad. Neither Nare nor Agbabiaka suggests that the taking of video evidence from abroad without the permission of the state concerned is unlawful, or that it makes the hearing a nullity. Agbabiaka suggests that such a hearing might be contrary to the public interest because of its potential to damage international relations, and, thus contrary to the interests of justice, but that is a different point. I accept Mr Kovats’s submission that the sanctions for such conduct are diplomatic, not legal.
77. I do not consider that the evidence about Pakistani law is relevant to the question whether, under domestic law, the hearing was unlawful or a nullity. In case I am wrong about that, I will briefly consider that evidence. I accept that the evidence was terse, but its substance was not challenged (other than by reference to its claimed inadequacy). I consider that it was a sufficient basis for the [First-tier Tribunal’s] conclusion (if that conclusion was necessary) that the hearing was not prohibited by any provision of Pakistani law.
78. If the hearing was lawful and not a nullity, the only other way in which it could be impugned is on the grounds that it was unfair. A has, however, been refused permission to argue, on this appeal, that the hearing was unfair. I will say no more than that the [First-tier Tribunal] was in the best position to judge whether the fact that A’s evidence was taken by video link made his appeal unfair or ineffective. If my view on this point is necessary, I am satisfied that the hearing was fair, for the reasons given by the [First-tier Tribunal]…
The legality of receiving evidence in the UK under UK law is different from the legality of giving evidence by video link from Pakistan under Pakistani law. The court may adopt a different stance and/or impose restrictions on the ability to submit evidence from abroad if there is evidence before it that there is a genuine risk of breaking a foreign country’s laws by doing so. In any case, Mr. Raza’s case serves as a reminder of the necessity of obtaining valid and appropriate consent before allowing video connection evidence from another nation.
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Written by:
Tahir Shahab Khan
Managing Director