Our pioneering work puts the onus on judges to protect “Vulnerable Witnesses”

WAR was alerted to the existence of guidance for judges about the treatment of vulnerable witnesses by Ms B. Having met us in Refugee Week 2008 in Belfast, she felt able to report rape for the first time as grounds for asylum. But the delay in her providing this information was seized on by the Home Office as evidence she was lying and this was rubber-stamped by the judge who heard her appeal. The Upper Tribunal found he had “materially erred in law” by failing to take into account why she had not been able to speak earlier as “it was incumbent on the judge to consider the potential impact of Joint Presidential Guidance Note No 2 of 2010.” We submitted a report for Ms B’s new appeal and in light of that and other expert evidence, the Home Office and previous judge’s disbelief was overturned. She was granted full refugee status.

We immediately started quoting the Guidance in letters and reports for other women. No lawyers pursued the failure to apply the Guidance until Abi Smith at Garden Court Chambers kindly stood in pro bono for a rape victim in Yarl’s Wood, Ms YF. But the Tribunal refused to reconsider her appeal even though it had failed to even mention, let alone apply, the Guidance. It seemed nothing more could be done. Ms YF was a real fighter though – later we found out that she had resisted removal 16 times! With our help, she applied to the Court of Appeal unrepresented and won the right to appeal:

the question of how Tribunals are to approach Joint Presidential Guidance, and this guidance note in particular, raises an important question of principle.” Judge Beatson, YF Cameroon v Secretary of State for the Home Department”, 5 September 2014 (Ref C5/2014/2595).

Ms YF’s appeal was granted refugee status in February 2017. The judge who heard her fresh appeal overturned his colleague’s previous decisions because they had “not taken into account the fact that the appellant was a vulnerable witness and that her evidence needed to be considered against the backdrop of the Presidential Guidance.” She subsequently won a substantial damages claim for unlawful detention.

Using the Guidance in the campaign

One of our first tasks in the campaign was to finalise a set of self-help tools to put on this blog, including one about the Vulnerable Witness Guidance, which many women have used successfully. Over the past three years lawyers have brought other legal challenges using the Guidance and it is now routinely referred to in women’s judgements.

“I attended the session about how to deal with judges’ refusals. I have to say that even my barrister hadn’t an idea about the Vulnerable Witness Guide… I always left my case in someone else’s hands to look after. Coming here I’ve been empowered to know what to do and encouraged so much. I’m getting more hope and strength to fight on.”

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s