Last month the Home Office published new guidance for Law Enforcement Agencies (LEAs) who need to secure the attendance of foreign nationals to give evidence in criminal proceedings in the UK. This policy replaces 2006 guidance and now also includes a section on European Economic Area (EEA) nationals and their family members who may be required to attend criminal trials in the UK and give evidence. The Guidance is drafted primarily with witnesses for the Crown in mind (although some may be witnesses for the defence) and the guidance is aimed at LEAs.
The guidance recognises the increasingly international nature of many criminal offences and deals with situations where a foreign national might be allowed into the UK specifically to give evidence in a criminal trial, or their stay extended or removal from the UK deferred for the same reason. The guidance stresses that "it is essential that the integrity of UK immigration control and border security is maintained at all times" and "the final decision will be made by the Home Office, with ministers being consulted if necessary".
When law enforcement agencies identify the need for a foreign national to enter or remain in the UK to give evidence at a trial the guidance makes it clear that they must make an application to the Home office promptly. They are required to submit a considerable amount of information in support of their request as outlined in the guidance. This will include the individual's immigration and criminal history, financial aspects of the visit, the expected duration of the trial, the importance of the witness's evidence to the trial and an assessment of any risk that the person's presence in the UK might pose the community.
The guidance requires LEAs to consider alternative routes to hear a foreign national's evidence, such as the use of live video links or agreed written statements which could then be read out in court. This is particularly appropriate where there is a concern that leave to enter is unlikely to be granted because of the requested person's criminal convictions, links with organised crimes or war crimes, or whose presence in the country is not considered conducive to the public good.
In most cases an individual who is subject to immigration control who is asked to travel to the UK to give evidence as a witness will still have to satisfy the requirements of the Immigration Rules for entry as a visitor. However, the guidance also provides that "in exceptionally limited circumstances...where there is a compelling public interest for a witness to attend trial but the person would be unlikely to qualify for a visa" the Home Office might consider a request to waive a UK visa or entry clearance requirement. However, such request "remains an exceptional one and must be used only as a last resort."
It is important to note that the guidance also requires LEAs to consider the immigration status of witnesses who are already in the UK. They must contact the Home Office to establish a foreign national's immigration status as soon as they identify that such person is required to give evidence in trial as a witness. The aim is to avoid situations when the trial might extend beyond such person's granted leave in the UK, or if a potential witness is subject of removal. If it is likely that a trial will take place after the expiration of their current leave then arrangements have to be made in advance to extend such witness's leave or deter removal.
LEAs are reminded that although EEA nationals do not require a visa to enter the UK, they must be exercising Treaty rights in the UK as workers, students, self - employed or self-sufficient persons in order to reside in the UK for longer than 3 months. Whilst securing the short term entry of an EEA national simply to give evidence should not ordinarily cause a difficulty, LEAs need to consider the immigration status of EEA nationals who are already resident in the UK. If they are not exercising Treaty rights they may find themselves liable to removal.
The guidance supplements the current Immigration Rules rather than introducing any new law. The general rule is that, save for in exceptional cases, foreign nationals who are required to be witnesses in criminal proceedings in the UK still need to meet ordinary entry clearance requirements. If this is not possible - and the Home Office are not prepared to waive the requirements - then alternative arrangements must be made.
LEAs who wish to rely upon foreign evidence must be aware of the guidance and proactively manage their cases to ensure that crucial evidence is not lost through a failure to adhere to the policy.
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