Witness statements are among the most important documents in appeals against Home Office refusals of immigration or asylum applications.
But what exactly are they, what should they include and what happens if you make a mistake?
What is a witness statement?
Where an individual makes an immigration or asylum application to the Home Office and this application is refused, it is sometimes possible to appeal to the First Tier Tribunal (Immigration and Asylum Chamber) (the Tribunal).
In an appeal, the Tribunal will expect the person appealing against the refusal decision (known as the Appellant), to provide certain documents which show why the decision taken by the Home Office was wrong.
With these documents, it is usually advisable for an Appellant to provide a written declaration giving their account of the relevant facts in the case, and which is known as a witness statement.
What is the purpose of a witness statement?
Unlike the criminal courts – where much evidence is given orally – the Tribunal relies heavily on written evidence provided in advance of the hearing.
A witness’s written statement will usually be their evidence-in-chief. This means that, at the appeal hearing, a witness will be asked to confirm that their written statement is true and correct, and will ‘adopt’ their statement.
Once a statement has been ‘adopted’ by the witness to the satisfaction of the Tribunal, it will be like they have said it out loud in the hearing room.
It is important to remember that a witness can be asked questions about their statement by lawyers for the Home Office (in a process known as cross-examination), or by the judge at any stage whilst they are giving evidence.
A properly drafted witness statement is therefore of crucial importance for any person with an appeal before the Tribunal.
And it is important to remember that the more detailed the written statement, the less information has to be provided in ‘live’ evidence by the witness at the hearing, which can be a stressful and nerve-wracking experience.
What is the format of a witness statement?
If your appeal is in the Tribunal, then the strict Civil Procedure Rules of the High Court regarding the preparation of witness statements will not apply (and neither will the penalties for breaking the rules).
However, many lawyers still consider these rules to be best practice and use them in the preparation of all statements, regardless of venue. If you are preparing a statement without a lawyer, it is probably worth your time to review these requirements.
A witness statement should start by giving the full name of the witness and their place of residence, followed by a short introduction setting out the purpose of the statement and their connection to the proceedings. For example:
I, ANTHONY APPELLANT of 1 Court Road, AS7 1UM, WILL SAY as follows:
I am the appellant in these appeal proceedings against the refusal of my asylum claim by the Secretary of State for the Home Department on 1 January 2021.
The pages of the statement should be numbered and statement itself should be divided into numbered paragraphs so that these can be easily referred to by everyone at the hearing.
It can also be helpful to use sub-headings to divide up the witness statement (like this blog post), allowing the judge to easily find relevant sections during the oral hearing and subsequently when writing up their decision.
Even where witnesses have had assistance from a lawyer when preparing their statements, they should be written in a witness’s own words and in the first person (i.e. “I did this, I said that”).
As witnesses will be asked (sometimes detailed and extensive) questions about their statements during a hearing, it is very important that a witness understand the words and phrases used in their statement (either in English, or which can be straightforwardly translated if using an interpreter).
Statements should not generally include any law, and should be in plain, readily-understandable English. The statement should also normally be chronological so that it is easy for the judge and the other parties involved to follow.
What to include in a witness statement?
There is no magic in writing a statement, and the required content will vary heavily depending on the subject matter. But we can make the following broad points.
The refusal decision
The decision of UK Visas and Immigration to refuse the application is the reason why the appeal is taking place. An Appellant’s witness statement should address any points raised in the refusal letter in detail.
It can also be helpful to address the contents of the Home Office refusal letter sequentially, weaving this through the narrative.
If there are elements of the refusal letter where the decision-maker appears to have misunderstood key elements of the case or misrepresented the evidence then a statement is an Appellant’s opportunity to respond.
Sometimes a statement may have been prepared in support of an Appellant’s initial immigration or asylum application and previously submitted to the Home Office.
Whilst your lawyer (if represented) is helping you to draft your appeal statement, they will need to take instructions about the accuracy of any evidence previously submitted in support of the application which is subject of the appeal.
If an initial statement made to the Home Office included errors then these will need to be addressed in the witness statement submitted in support of the appeal.
This may also necessary if a Home Office interview has been conducted and there are transcription and/or interpretation errors in the written record, or clear misunderstandings between the interviewee and the Home Office Interviewing Officer.
If the information provided in the witness statement is different from that given previously and those discrepancies are not addressed, then it is likely that the witness will be asked questions about this at the hearing. Which brings us to…
Credibility is often a very important issue in immigration and asylum appeals, and we frequently see appeals dismissed by judges because they did not believe an Appellant and/or other witnesses who have given evidence to the Tribunal.
For this reason, even minor inconsistencies within a person’s evidence can have a profound effect on their case if they are raised by the Home Office or the judge and not properly addressed.
If represented, one of the most important jobs your lawyer will have is to review all of the relevant documents and help identify any inconsistencies between any of the evidence previously provided.
This process then enables Appellants to address these issues in advance via a witness statement. This can be a very time-consuming process, especially where there has been lots of evidence submitted in support of the application.
Stress-test your statement
There are significant benefits of stress-testing your account you have provided.
What we mean by this is having a person – preferably a lawyer – read through the statement and asking questions which occur to them about the account given.
This process will help produce a well-drafted statement which does not raise more questions than it answers.
It will also give the witness an insight into the kind of questioning they can expect during cross-examination and enable them to think through their approach to answering during the oral hearing.
This is another significant benefit of having a legal representative with litigation (court) experience who will be able to identify gaps or inconsistencies in an account, and where a witness can then address these in advance.
Finalising the statement
While your statement is in the preparation phase, represented appellants should receive statements in drafts as they go so that any inaccuracies or omissions can be identified.
Alternatively, if a witness cannot read the statement themselves in English, it is best practice for the final draft to be “read back” to them in a language which they understand with the benefit of an interpreter.
Only once a witness has had the opportunity to make amendments and to confirm that they are happy with the content will their lawyer ask them to sign and date the final version. All witness statements submitted to the Tribunal must be signed and dated.
The closing paragraph (also known as a Statement of Truth) must confirm that the witness believes the contents are true and accurate.
What are the consequences of making a false statement?
Information or documents submitted to the Home Office during the application process and which are discovered to be false can cause that application to be refused at the decision stage, and can even cause leave to remain to be revoked if discovered at a later date.
In the High Court, contempt of court proceedings may be brought against a person who makes a false statement verified by a statement of truth within High Court proceedings and punitive action may be taken against those found guilty. As noted above, this does not apply in the Tribunal.
However, if during the course of appeal proceedings in the Tribunal an appellant is believed to have lied in their statement, then their credibility is likely to be significantly damaged and this can be a basis on which a judge will dismiss an appeal.
Correcting mistakes in a statement
Ultimately, it is a witness’s responsibility to check all the information contained in their witness statement is true and accurate and includes all the matters relevant to their case before they sign the statement of truth.
As the day of the Tribunal hearing approaches, witnesses should re-read their statements to refamiliarise themselves with the content.
If, at that stage, you notice an error in your final signed statement which you had not previously picked up then it is not too late to notify your lawyer, if represented.
Provided it is before the oral hearing, they can make the correction(s) and, depending upon the length of time before the hearing, the amended statement could either be circulated to the Home Office and the Tribunal beforehand or your advocate could do this on the day.
The other option would be to raise the error when asked to confirm whether the statement you have provided is true and accurate to the best of your knowledge and belief during the evidence-in-chief process during the hearing itself.