FTT hearings: giving evidence from overseas

The First-tier Tribunal (Tax Chamber) issued guidance in April 2022 on the giving of oral evidence from abroad by video or telephone. This is in response to the decision in Secretary of State for the Home Department v Agbabiaka [2021] UKUT 286 (IAC). The process is as follows.

1. As soon as possible after filing the notice of appeal at the Tribunal, identify all the witnesses (which may include the appellant).

2. Identify whether any of those witnesses are likely to give evidence by video or telephone from outside the UK

3. If so, notify the Tribunal Service at taxappeals@justice.gov.uk (copying in HMRC). The subject line should include the words ‘Evidence from abroad’ and the body of the notification should include: the name of the person who will give oral evidence from abroad; the country from which that person will be giving such oral evidence; and what the evidence will be about.

4. The Tribunal Service will then contact the Foreign, Commonwealth and Development Office (FCDO) Taking of Evidence Unit.

5. The FCDO will check its records as to whether or not the foreign state objects to the giving of evidence or has any particular requirements and will inform the FTT of the position. There are the following possibilities:

• the foreign state has no objection: proceedings can then continue as normal;
• the foreign state has specific requirements: the person will only be able to give evidence from abroad if these requirements are met;
• the foreign state objects to the giving of evidence: it will be necessary to consider alternatives (see below);
• the FCDO does not know the view of the foreign state: the Tribunal will then instruct the FCDO to take the necessary steps to establish the position.

The tribunal advises that this process is likely to take months. It is therefore essential to begin this process as soon as possible. If the foreign state objects to a witness giving evidence from within its boundaries, or if the tribunal indicates that it may not be in the interests of justice to delay the hearing to await confirmation of the position from the FCDO, it is necessary to consider whether the witness:

• can give the evidence from the UK;
• can give the evidence from a foreign state that does not object, but it will be necessary to repeat the process above to obtain the relevant confirmation; or
• cannot give oral evidence at all. It will then be necessary to rely only on the witness statement, and HMRC will be unable to cross-examine the witness. In consequence, HMRC may ask the tribunal to place no weight, or little weight, on that evidence.

If the process is not followed or there is a failure to obtain the necessary clearance(s) by the time of the hearing, the tribunal may postpone or adjourn the hearing to allow time for compliance. This will not only cause delay, but if the tribunal decides that the appellant or their representative have acted unreasonably in not following the process, or because insufficient time was left to do so, the tribunal could make a costs award against the appellant on the basis of unreasonable behaviour, or a wasted costs award against the representative. The tribunal may alternatively decide that it is not in the interests of justice to adjourn, but instead to proceed without the witness giving oral evidence. This is likely to disadvantage the appellant.

Tolley