Witness Statements in Immigration and Asylum Appeals

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Hi, and welcome to this latest immigration law update video. This is part of a series of videos I'm doing, looking at the new Practice Direction in the First-tier Tribunal, Immigration and Asylum Chamber. The Practice Direction came out on the 1st of November 2024.

I've shared my screen, and on my screen is the EIN link to the Practice Direction. The EIN link is available to and accessible to everyone, and I’ve put the link below this video.

One of the key themes—or rather, two key themes—in the Practice Direction are disputed issues and procedural rigor. These involve the need for the parties to focus on the issues in dispute and the need for the parties to act with procedural rigor. The tribunal also produced a guide: a guide to the new Practice Direction. Here is a link to the guide, which also includes a short video explainer from a tribunal judge.

But let’s go back to the Practice Direction itself. Here’s the index, and let’s have a look in this first video at witness statements. Witness statements are dealt with in Section 8 of the Practice Direction.

If an appellant seeks to rely on testimonial evidence, witness statements from any such witness must be provided. Witness statements should be included in the bundles as set out above. So, when a bundle is being prepared, there’s the appeal skeleton argument and a bundle. In that bundle, there need to be statements from anybody who’s going to give evidence.

Now look at 8.2: a witness statement should be capable of standing as the totality of the evidence-in-chief of the person giving that statement. So, a statement needs to be comprehensive and cover the relevant issues. Remember to focus, as we’ve said, on the disputed issues.

8.3 states that a witness statement may be added to by the provision of a supplementary statement, provided that the supplementary statement is produced and served in accordance with any directions given in the appeal. Now, as you’re aware, in the Practice Direction, there’s a need at an early stage to produce your bundle, your skeleton argument, and a witness statement. Often, there may be developments in a case as time goes on.

If there have been developments, don’t just think, "Oh well, I can ask my client some questions in evidence-in-chief about that." What needs to be done is a supplementary statement. Remember, 8.4 specifies that only where there is good reason and with permission of the judge will a witness be permitted to provide additional evidence-in-chief. That’s a bit of a softening since the last Practice Direction, which required exceptionality. Now there’s a test of good reason, but you’re going to have to explain to a judge exactly why and provide that good reason to ask your client questions in chief. So, I’d encourage you, if there are developments, to provide that supplemental statement.

What should a statement contain? Look at 8.5 and following. It must, if practicable, be in the intended witness’s own words. It’s important that the statement is in the words of the witness. I sometimes read witness statements that read like legal arguments and aren’t in the witness’s own words. That’s not helpful at all. Or, you may find a long witness statement that focuses on lots of other issues but not on those disputed issues. So, make sure it’s in the witness’s own words, focusing on those disputed issues.

The statement need not be in a language that the witness understands. However, if it is drafted in English—a language not understood by the witness—it must be signed and must include a signed and dated attestation by both the witness and the person who interpreted it. This attestation confirms that the statement has been read back to the witness in a language they understand and accurately reflects their evidence. I’ll go through the wording for those attestations in a moment.

A witness statement should also set out what is detailed in 8.6(a) through (f). It must be expressed in the first person and contain the matters set out in 8.6. I’m not going to read them out in this video. Sections 8.7 through 8.9 address where a statement is exhibiting a document or referring to an exhibit or a document.

Sections 8.10 through 8.12 deal with the statement of truth and interpreter attestations. 8.10 notes that a witness statement is the equivalent of the oral evidence that the witness, if called, would give. It must include a statement by the intended witness in their own language that they believe the facts in it are true.

The statement of truth is set out in 8.11. Make sure, in your appeal preparation, you’re using the exact wording in this statement of truth. Section 8.12 outlines what the interpreter declaration should include and provides the wording for it. Again, the person who has interpreted the statement must include this declaration in the wording as set out in 8.12.

I hope that’s helpful to you. I’m going to do some further videos on country evidence and expert evidence, so do look out for those. The links to this video are below. I hope that’s helpful.