All appeals are heard at an Immigration Tribunal usually in the First Tier Tribunal which is the first stage of the appeal.
How to give evidence as a witness for an Immigration appeal?
In some cases, you may be a witness as well as the appellant. You must be fully aware of the case if you are the appellant and be able to give an accurate account of information when asked at the tribunal. If you are just a witness, then you are required to know at least key facts and important information regarding the case when asked to testify or give evidence at the tribunal. It is crucial that you are aware of the procedure of the tribunal and know how to provide information properly and in the correct manner such as being confident in what you are saying. This is important as if a witness is not prepared well or is unable to give key details about the case then it appears that they may not be genuine witnesses and/or are merely supporting an application by falsifying information.
What is a witness Statement
A witness statement is a written document that contains details of a legal case from the perspective of the witness. It records key information that witnesses wishes to submit for an appeal being made and reflects what they have to say in order to support and provide evidence for Immigration and other types of cases.
Providing a Witness Statement
The witness statement is a vital part of the case as it is reviewed in depth thus it is important that it is written accurately and has all relevant information. It must be concise and to the point so that key facts can be emphasised on. Additionally, it needs to contain all information that will be presented at the tribunal which the witness must be fully aware of as its his/her statement reflecting what they have to say. The witness therefore must make sure he has fully read his witness statement a couple of times to familiarise himself with its content to avoid getting stuck when asked to give details, this is because it seems you are unaware of the case or are falsifying information. The tribunal has a deadline for these statements which must be submitted to Home Office at least 5 days prior to the court hearing, it is therefore advised that you prepare the statement in plenty of time and send it off sooner so it can be reviewed in time.
In Entry Clearance cases, as the appellant is overseas thus, he cannot be present at the hearing to provide evidence, therefore is evidence is derived from his sponsor, friends, colleagues or anyone who may be a reliable, beneficial and knowledgeable witness who can support the appellant. There are occasions where there is a representative such as a Barrister, Solicitor or an Immigration advisor who guides witnesses through the appeal process. If there isn’t a representative, then the sponsor/witnesses and the appellant themselves will have to provide evidence at the hearing without such support present. It is even more crucial for witnesses to be well prepared for the case in occasions where there is no representative to guide them. The witness statement is thoroughly studied by the Home Office have the right to cross examine or counter argue information presented in the statement. This means that the Home Office representative will pick out key details from the statement and ask questions they think will reveal more information about the case. Additionally, they ask questions that will determine the credibility, accuracy of information, reliability and genuineness of the witness, thus witnesses need to be able to answer questions that are designed to often trick or confuse them and fight to prove their realness. Additionally, the information orally given by the witness at the tribunal must match the content within the statement. This means that you stick to what you have said in your statement and are not making any information up to avoid getting tricked or stuck at a question since this is against the conduct of court and morally wrongful. The Home Office will try to test whether the evidence and information provided both orally and through the witness statement are sufficient or adequate for a judgement. The witness must therefore be chosen very carefully if it is a friend/colleague etc as their lack of knowledge or gullible nature can mess up the case. The witnesses therefore should be clever in nature meaning that they are able to answer questions to the point and not appear as if they are developing responses that to them seems suitable rather than facts truly and accurately. If a question requires a Yes or No response then only give that rather than expand or give any other information, this implies that all answers must be brief and not longwinded as that can annoy the judge or the presenting lawyer. There are instances where the witness may not know or can’t recall of a situation or a detail about the case, in such occasions he must simply state “I don’t know, or I can’t remember” and not make an answer up. There is nothing wrong in not knowing every detail and the judge would appreciate the honesty than a false/inaccurate response.
The presenting officer (Home Office Lawyer) will make attempts to reveal contradictions and discrepancies within the answers of all witnesses and their statements. This means that they test whether all witnesses are providing the same information and not giving a different account of one situation. As this would question and can damage the credibility of witnesses if they are giving contradicting responses to questions asked. If this happens then the judge will rely more on documented evidence and may reject the testimonies of witnesses thus the case will lose a crucial element of witness evidence which could have supported the judgement. All appellants and witnesses must follow the decorum and conduct of court, they must not argue with any of the court officials or case representatives as this is not only disrespectful but also makes the judge furious. When answering questions regardless of whom it is coming from, the witness or the appellant should look towards the judge to see if he is taking notes, if that is the case then he should answer in a slower pace and not rush through to ensure the judge is able to note down his response fully. Once the Home Office lawyer has finished his questioning, the appellant’s lawyer has an opportunity to counter argue the questions asked by the Home Office lawyer or ask questions from the witness that would clarify a point to strengthen the case, if the witness has given a weak answer to one or more of the questions then he can re-question to provide a better reply. The judge can also ask questions in order to understand the case or if he is unsure of.
In some cases, the witnesses or the appellant may not be fluent or comfortable in speaking in English for various reasons; such as English being a foreign language, technicality of court environment and hesitance or confidence issues. In these circumstances, the appellant is required to request an interpreter that would assist him and would benefit in answering questions better. The interpreter must be requested in advance of the tribunal in order to ensure it is available and booked for the hearing. The tribunal has to be informed of this requirement so that they can make it available to you, at least 6 days prior to hearing but it is always advised to request as soon as possible as there may be a situation where an interpreter is not available meaning you either attend the hearing without him or apply for a new date of hearing. The interpreter would be fluent in both English and your native language and will translate all the questions asked for you in your language, as well as your responses to those questions in English so both parties can understand what is being said. This makes communication effective and smooth with the added ease and comfort for the witness/appellant.
Once the cross examination and all questions has finished, the witness or the appellant is not required to say anything further or make a speech as this is not permitted unless he is asked to make his submissions by the judge.
The next stage once evidence is completed is to provide submissions which the Home Office lawyer will make, it is like a speech to explain why the appeal should be dismissed. He will quote points from the evidence submitted as well as credibility and/or reliability of witnesses and what they have said to support his argument against the case. He will make a strong attempt to convince the judge that the case doesn’t meet Immigration requirements and/or is weak, with claims being made that Human rights will not be breached if the appellant is removed from the UK, or the application is refused. The appellant’s representative would also make his speech and try to counter argue the speech of the Home Office lawyer. He will clarify aspects of the case as well as provide key points from the evidence that would strengthen his argument. He will make his own attempts to convince the judge as to why the case must not be refused, how it meets relevant provisions of Immigration rules, how it would breach human rights if the appeal is refused or the appellant is removed from the UK.
Take Home Message
Witness evidence is very important for legal cases and so there is a strong emphasis to provide witness evidence as it is a key aspect of the whole legal procedure, there are occasions where there are gaps or a lack in the documented evidence and/or in the assertions which can be replaced with both a witness statement and the presence of that witness at the hearing. This would strengthen the case as witnesses can give information that is missing hence brings transparency to the case. It is therefore crucial that the witnesses provide reliable and accurate evidence as well as are able to concisely explain details of the case and answer all questions to the best of their knowledge. For this they need to be well prepared, confident, disciplined and be aware of possible questions that may be asked by the Home Office lawyer.