Waele Bittar v Secretary of State for the Home Department [2025] UKUT 277 (IAC)

[2025] UKUT 00277 (IAC)

Bittar (PTA – FTT practice)

IN THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

Venue Heard at Field House

Hearing Heard on 8 July 2025

THE TRIBUNAL PROCEDURE (UPPER TRIBUNAL) RULES 2008

Promulgated on 15 July 2025

Before

JUDGE PLIMMER,

PRESIDENT OF THE FIRST-TIER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)

UPPER TRIBUNAL JUDGE BLUNDELL

UPPER TRIBUNAL JUDGE O’BRIEN

Between

WAELE BITTARAppellant

SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent

Mr Marziano, IAA Registered Adviser, Westkin Law for Appellant

Ms McKenzie, Senior Home Office Presenting Officer for Respondent

Date 2025-07-15

Notice of Decision

[1]The current practice of salaried FTT judges considering PTA applications against their own decisions does not offend against the principles of procedural fairness and does not, in principle, give rise to concerns of apparent bias or a judicial mind which is closed to the merits of the application for PTA. The change promotes the most effective use of judicial time and furthers the overriding objective.

[2]Judges of the FTT who consider applications for PTA will do so dispassionately and with an open mind and will give adequate reasons for their decisions. The decision on an application for PTA is not an opportunity to provide additional reasons for the substantive decision, or to defend that decision against challenge. It is particularly important that the language used in determining a PTA application does not give the impression that the judge approached that application with a closed mind.

[3]A renewed application for PTA to the UT is against the substantive decision on the appeal, not the FTT’s decision on the application for PTA. The Upper Tribunal is for that reason unlikely to be assisted by extensive argument about the FTT’s decision on the application for PTA. ON AN APPLICATION FOR PERMISSION TO APPEAL PURSUANT TO RULE 21 DECISION AND REASONS

[1]The appellant has renewed his application for permission to appeal (‘PTA’), against the decision of the First-tier Tribunal (‘FTT’), promulgated on 6 February 2025, dismissing his appeal against the respondent’s decision to refuse his protection and human rights claim, made in the context of deportation proceedings. No anonymity order was made by the FTT and we were not invited to make any such order.

[2]A panel was convened to determine the renewed permission to appeal (‘PTA’) application orally in order to fully address the allegation in the renewal grounds that the FTT acted procedurally unfairly, because the same FTT judge who dismissed the substantive appeal also refused PTA in a separate decision dated 9 April 2025. We heard helpful submissions from Mr Marziano and Ms McKenzie. This is a decision to which all members of the panel have contributed.

Background

[3]The appellant is a citizen of Sierra Leone born in 1999. When he was around 4 years old, he entered the United Kingdom (‘UK’) and was granted indefinite leave to remain in 2010. On 27 March 2020, the appellant was sentenced to a total of 13 years’ imprisonment. This included a 12 year sentence imposed for wounding with intent to do grievous bodily harm. This took place in 2018, when the appellant was 19. On 28 May 2022, the respondent notified the appellant of her intention to deport him, and on 4 July 2024 refused his consequential protection and human rights claims. The appellant’s appeal to the FTT was dismissed on all grounds.

[4]The appellant applied to the FTT for PTA to the Upper Tribunal (‘UT’), in accordance with rule 33 of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (‘FTT Procedure Rules’). These grounds entirely focussed upon Article 8 and the FTT’s findings pursuant to s. 117C of the Nationality, Immigration and Asylum Act 2002 (‘the 2002 Act’), in particular the FTT’s approach to the elements of Exception 1 prescribed within s. 117C(4) (b) and (c), which it is claimed, led to a materially flawed assessment under s. 117C(6) and the relevant proportionality assessment.

[5]In accordance with the FTT’s change in practice in January 2025, the PTA application was allocated to the same salaried judge who decided the substantive appeal. The FTT refused PTA, providing the following reasons:

“1. The application is in time. The grounds assert that I erred in relying on public interest considerations when considering the private life exception to deportation, specifically in considering the level of the Appellant’s integration. 2. I do not accept that I have done so. In referencing the public interest in deportation before the question of cultural and social integration, I have simply avoided duplicating my findings. As I set out, ‘cultural and social integration’ is the acceptance and assumption of the core values, customs and social behaviours of the UK, including the rule of law. It is trite that offending behaviour is not consistent with social integration. It was therefore necessary to consider the Appellant’s criminality in order to consider whether he met the requirement of being socially and culturally integrated. 3. My sub-headings make clear that I was considering different matters in each section. Nowhere in the ‘Cultural and social integration’ part of my decision do I reference the public interest. I consider my assessment of this issue was correct and properly directed. I undertook the ‘qualitative’ assessment as dictated in Bossade. I see no arguable error of law in this ground. 4. Ground 2 amounts to an attempt to give expert evidence in the form of a submission. I consider it was correct to place little weight on such historical evidence of mental illness. As the grounds acknowledge there was no PTSD diagnosis or treatment ever required for the same. The Appellant himself accepted being fit and well which I note in the decision. I see no arguable error of law in this ground. 5. Ground 3 amounts to a submission that the overall conclusion was wrong because of flaws as identified in the other two grounds. Having concluded that the other 2 grounds do not disclose an arguable error of law, I therefore do not agree with this ground either. The Appellant received a very lengthy sentence for very serious criminality and his overall private life claim was comparatively weak when set against the very significant public interest in his deportation. He needed a very compelling case indeed and this was not demonstrated on the evidence.”

[6]In the renewed application to the UT pursuant to rule 21 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (‘UT Procedure Rules’), the appellant maintained reliance upon his initial grounds and in addition asserted that it was procedurally erroneous for the same FTT Judge to deal with the PTA application against his own decision.

PTA applications determined by the same FTT Judge

[7]In advance of the hearing before us, Mr Marziano wrote to the Upper Tribunal to acknowledge that, since drafting the renewal grounds, he had become aware of the change in FTT practice to the effect that PTA decisions can be determined by the salaried judge who determined the appeal, as this had been published by the Immigration Law Practitioners Association. We invited Mr Marziano to clarify whether he continued to rely upon the following in the renewal grounds:

“It is trite law that FTT judges cannot decide upon permission applications for appeal decisions they have themselves made, for clear and compelling reasons of fair and open justice. Such a course of action would plainly and incontrovertibly amount to a grave procedural error.”

Mr Marziano accepted that there is no authority for such a proposition. Indeed, he went further in accepting that there was nothing in law preventing this approach on the part of the FTT. He therefore recalibrated the challenge in the renewal grounds in a more limited way, as follows: this particular FTT judge was impermissibly defensive in his PTA decision and, in using the first person to refuse each of the grounds of appeal, acted in a manner that would give the impression of approaching his task with a closed mind.

[8]Ms McKenzie accepted on behalf of the respondent that this recalibrated submission fell within the scope of the grounds of appeal and that she was able to address the point.

[9]Before we address this specific challenge, we make some general observations.

[10]A PTA application to the UT is not an appeal against the PTA decision of the FTT judge – see [33] of the Joint Presidential Guidance 2019 No 1: Permission to Appeal to UTIAC (‘the PTA Guidance’). What must be established is an arguable error of law in the substantive decision of the FTT, and not an arguable error of law in the PTA decision. The UT is often likely to be assisted by a renewed application which engages concisely with the reasons given by the FTT for refusing PTA but a renewed application is not an opportunity for extensive argument about the PTA decision itself; the focus must always be on the decision under appeal. We have nevertheless decided to address the submissions made in any event, as they raise important issues relevant to PTA practice and procedure in the FTT.

[11]It used to be the practice that matters under Part 4 of the FTT Procedure Rules, including PTA applications, would be allocated to a pool of trained salaried judges, with the general expectation that a salaried judge would not be allocated a PTA application arising from their own substantive decision. On 27 January 2025 this practice changed. PTA applications are generally allocated to the same salaried judge who made the substantive decision, where it is possible to do so. The reasons for this change in practice are straightforward and outlined below.

[12]First, the change in practice brings the Immigration and Asylum Chamber closer to the practices in the majority of other Tribunals and the general practice in the Courts. The various Chambers of the First-tier Tribunal apply similar Procedure Rules. The practice of the following Chambers of the First-tier Tribunal is for PTA applications to be determined by the salaried judge who made the substantive decision: General Regulatory, Property, Tax, and Social Entitlement. Under the Civil Procedure Rules 52.3, a PTA application may be made to the lower court at the hearing at which the decision to be appealed was made or any adjournment of that hearing; or to the appeal court in an appellant’s notice. A similar provision applies in family cases – see Rule 30.3(3)(a) of the Family Procedure Rules. In other words, the general expectation in the courts is that PTA applications are made at the hearing at which the substantive decision to be appealed is made, and determined by the same judge who made the substantive decision. This is similar to the practice of the UT where a decision disposing of judicial review proceedings is given at a hearing. Rule 44(4A) of the UT Procedure Rules states that a party may apply at that hearing for PTA, and the UT must consider at the hearing whether to give or refuse PTA. By rule 44(4B) the Upper Tribunal must consider whether to give or refuse PTA of its own motion, even if such an application is not made.

[13]Second, the change in practice in no way offends against the principle of procedural fairness. It is to be generally expected that a specialist judge in the FTT considering grounds of appeal against one of their own decisions will do so dispassionately, so as to ensure that they are seen to act in a way which is consistent with the objective demands of fairness and justice – see the recent observations in Ladybill Ltd v Sheffield Mags & Rotherham MBC

[2025] EWHC 1169 (Admin)

. It is of course necessary for judges to approach this task with an open mind and to give adequate reasons for the outcome in the PTA decision. Where they have made adverse findings against a party, it is particularly important that the impression is not given thereafter that they have approached the PTA application with a closed mind. The reasons should focus upon why PTA is granted or refused. Any temptation to provide supplementary reasons for the original decision or to use the PTA decision as an opportunity to advocate unnecessarily in favour of the challenged decision should be resisted. As Turner J observed in Ladybill (supra) at [43]:

“It is only human nature that a judge may feel a mixture of emotions when facing a challenge to one of his or her decisions whether by way of appeal or review. Ultimately, however, he or she must thereafter be seen to act in a way which is consistent only with the objective demands of fairness and justice.”

[14]Third, the judge who made the substantive decision is well-placed to consider whether the decision should be set aside or reviewed. Where the FTT has given a decision that disposes of proceedings i.e. the substantive decision, further matters may fall to be decided under, or in accordance with, Part 4 of the FTT Procedure Rules. As [7] of the PTA Guidance highlights, before considering whether to grant a PTA application the FTT judge will:(1) decide whether there is any basis for exercising powers to set aside the decision under Rule 32; and

(2) must, according to Rule 34, decide whether to review the decision in accordance with Rule 35.

[15]Similarly, the judge who made the substantive decision is also well placed to make observations, which may be of assistance to the parties and / or the UT, whether the PTA application is granted or refused. We have in mind observations as to whether a document was adduced before the judge, whether a witness was called, or whether a submission was in fact made. However, a judge considering a PTA application should bear in mind that the substantive decision should speak for itself, and must avoid any attempt to provide additional reasons for that decision in their decision on the PTA application. This should not be used as an opportunity to mount a defence of the substantive decision – the judge’s principal function at that stage is to first consider whether to review the decision, and then consider whether the grounds of appeal are arguable (Rule 34), whilst bearing in mind other powers in Part 4 of the FTT Procedure Rules.

[16]Fourth, a disproportionate amount of time was being spent by salaried judges without any knowledge of the case, reading extensive background materials in order to understand and determine PTA applications, when that could be done more efficiently by the salaried judge who conducted the appeal and made the substantive decision. Regrettably, there remain too many instances of grounds of appeal that are poorly formulated, unfocussed and excessively lengthy. The UT recently drew attention to this and has provided guidance on the correct approach to and wider expectations involved in, PTA applications: see Rai and Dam (Grounds of Appeal, Limited Grant of Permission)

[2025] UKUT 00150 (IAC)

and Lata (FtT: principal controversial issues)

[2023] UKUT 163 (IAC)

. As observed in Rai at [14]: “A consequence of poorly drafted grounds of appeal is the inappropriate expenditure of judicial time in attempting to understand the basis and thrust of the application. It is only if the parties do what is properly required of them that the Upper Tribunal will be able to deal with the appeal fairly and justly in accordance with the overriding objective…"

[17]Fifth, the change in practice accords with the overriding objective to enable the FTT to deal with cases fairly and justly pursuant to Rule 2 of the FTT Procedure Rules. This includes the following, in particular: dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties and of the Tribunal; using any special expertise of the Tribunal effectively; and avoiding delay, so far as compatible with proper consideration of the issues. Judicial time and resources must be jealously protected and utilised to ensure the Tribunal can deal with cases fairly and justly. A consequence of judges determining PTA applications without any previous knowledge of the case, particularly where grounds of appeal are not clearly drafted, is increased time spent understanding the background materials and alleged errors of law. Where salaried judges, with a full understanding of the relevant background, determine PTA applications arising from their own substantive decisions, time is saved. The matter benefits from the input of the judge who knows the case the best.

[18]We add for the sake of completeness that, where the substantive decision was made by a fee-paid judge, the practice of allocating PTA applications to a pool of trained salaried judges to determine any such matter under Part 4 of FtTIAC Procedure Rules, continues at present. Given the way in which the booking system works and the size of the Chamber and its current caseload, it would be impractical and may cause undue delay for these matters to be determined by the fee-paid judge who determined the substantive application.

[19]Whilst Mr Marziano resiled from the challenge in his renewal grounds to the effect that the consideration of the PTA application by the judge who made the substantive decision would always be procedurally unfair, we would nonetheless observe that such a submission has no basis in principle and fails to take into account widespread judicial practice in other jurisdictions. The implicit suggestion in such a challenge that such a judge would be unable to make an unbiased decision is unsustainable.

[20]Drawing these threads together, we reach the following general conclusions:(i) The current practice of salaried FTT(IAC) judges considering PTA applications against their own decisions does not offend against the principles of procedural fairness and does not, in principle, give rise to concerns of apparent bias or a judicial mind which is closed to the merits of the application for PTA. The change promotes the most effective use of judicial time and furthers the overriding objective.

(ii) The judge who determined the substantive appeal is best placed to determine the PTA application, and to decide whether the substantive decision should be set aside or reviewed. That judge is also well placed to make observations in the PTA decision which might be of assistance to the UT and / or the parties.

(iii) Judges of the FTT who consider applications for PTA will do so dispassionately and with an open mind and will give adequate reasons for their decisions, bearing in mind the PTA Guidance. The decision on an application for PTA is not an opportunity to provide additional reasons for the substantive decision, or to defend that decision against challenge. It is particularly important that the language used in determining a PTA application does not give the impression that the judge approached that application with a closed mind.

(iv) A renewed application for PTA to the UT is against the substantive decision on the appeal, not the FTT’s decision on the application for PTA. The Upper Tribunal is for that reason unlikely to be assisted by extensive argument about the FTT’s decision on the application for PTA.

The PTA Decision in the Instant Appeal

[21]We now turn to Mr Marziano’s recalibrated submission. We observe, as we have above, that the appeal is against the substantive decision of the FTT, rather than the refusal of PTA. In light of Mr Marziano’s criticisms of the PTA decision, however, we make the following observations.

[22]The PTA decision in this case demonstrates no arguable danger that the reasonable and fair-minded bystander would perceive there to be a risk of apparent bias. Such a bystander is expected to be informed and instructed about the law and would be aware of the following: the judicial oath taken by all judges, the general practice that judges in general consider PTA applications against their own decisions, and the training provided to and professional objectivity required of judges: Broughal v Walsh Bros

[2018] EWCA Civ 1610

;

[2018] 1 WLR 5781

, at [23].

[23]As set out above, the change in practice was communicated to stakeholders at the Immigration and Asylum Chamber Improvement Group on 2 June 2025:

“Since 27th January 2025 PTA decisions can be determined by the salaried judge who determined the appeal. This reflects and is consistent with the practice in other jurisdictions. Additional training and guidance is being provided to ensure that every judge considers all grounds of appeal, including those against their own decision, with an open mind and that adequate reasons are provided within the PTA decision.”

[24]We are entirely satisfied that it cannot arguably be said that in refusing PTA, the FTT judge in this case acted in any way that could be said to constitute procedural unfairness or bias in the limited way submitted by Mr Marziano. Whilst it might be considered preferable to refer to “the FTT” or “the Tribunal” in the PTA decision, there is nothing wrong in principle with using the first person, provided that the PTA decision demonstrates that the judge has approached the grounds with an open mind, and without fear or favour. In our view the judge has engaged with the three grounds in a manner that was open to him.

[25]Mr Marziano also submitted that there were other aspects of the PTA decision which suggested that the judge had approached the matter with a closed mind. It is for that reason that we have reproduced the entirety of the PTA decision above. Mr Marziano singled out the first sentence of [2]:

“I do not accept that I have done so”’ for particular criticism. We do not consider that mode of expression to suggest any defensiveness or closed mindedness on the part of the judge. It was merely another way of saying that he did not consider there to be any merit in the argument advanced. The only conceivable criticism of the sentence could be that the judge expressed his conclusion in absolute terms, rather than stating that the submission was unarguable. However, the decision when read as a whole, shows quite clearly that the judge had the appropriate test of whether there is an arguable error of law in the substantive decision, in mind. Grounds of Appeal Ground 1 – wrong approach to “integration”

Grounds of Appeal

[26]Contrary to the assertion at [4] in the grounds, the FTT has assessed each component of s. 117C(4) of the 2002 Act, finding that the appellant met Exception 1(a) but not (b) and (c). The FTT gave unarguably adequate reasons for these conclusions: the appellant had been lawfully resident in the UK for most of his life [29]; he was not socially and culturally integrated in the UK [35-38], and; there would be no significant obstacles to his integration into Sierra Leone [39-46]. The FTT then considered “very compelling circumstances over and above” Exception 1 pursuant to s. 117C(6), together with the relevant Article 8 balance sheet including the public interest at [47-64].

[27]Mr Marziano submitted that the FTT arguably erroneously imported into Exception 1, a balancing exercise in which it treated the strength of public interest in deporting the appellant as relevant. Whilst it is correct that the FTT addressed the public interest in deportation at [30]-[34], and therefore prior to considering Exception 1(b), this did not impact or infect the separate “social and cultural integration” assessment which followed. The structure might at first blush give rise to a concern that the conclusions on the public interest erroneously informed the FTT’s approach to cultural and social integration. However, when the decision is read as a whole, it is unarguably clear that the FTT correctly considered integration as a self-contained question without any reference to the strength of public interest.

[28]Contrary to the submission at [7] of the grounds, the FTT applied the relevant authorities on the meaning of cultural and social integration for the purposes of s. 117C(4)(b). Whilst the FTT did not cite any authorities, Mr Marziano properly accepted that the real question was whether the FTT applied the principles in the relevant authorities. The judge’s self-direction at [35], and the carefully reasoned findings which followed, unarguably reflect the principled approach set out in Binbuga v SSHD [2019] Imm AR 1026;

[2019] EWCA Civ 551

at [56]-[57] and CI (Nigeria) v SSHD [2019] Imm AR 503;

[2019] EWCA Civ 2027

at [60]-[62].

[29]Mr Marziano criticised the FTT for placing the appellant’s criminality “front and centre”, at the expense of his private life, when evaluating cultural and social integration. When the decision is read as a whole, that criticism cannot be said to be arguably well-founded. The FTT was clearly well aware of the limited extent of the appellant’s family life with his mother and siblings. There has been no challenge to the findings at [25-28] that this does not constitute family life for the purposes of Article 8. The FTT properly took into the nature and extent of the appellant’s private life in the UK, in particular his long standing residence in the UK including schooling from the age of 4 and his lack of ties to Sierra Leone – see [29, 36, 38, 41, 42, 44, 45, 54, 60, 61 and 63]. The FTT was unarguably aware of and factored in those aspects which suggested the appellant was culturally and socially integrated to the UK and was unarguably entitled to find on the evidence available that as at the date of hearing, on balance, he was not integrated, in the light of the absence of any lawful meaningful cultural or social connections. This should be viewed in the context of the undisputed evidence that the appellant was involved in serious criminal offending during his teenage years, which culminated in a very lengthy sentence when he was 19, in relation to which he remains in prison.

[30]Mr Marziano focused his oral submissions on the FTT’s alleged failure to address integration and rehabilitation before deciding that the appellant’s criminality negated it. However, Mr Marziano was unable to identify any material factor left out of account, when the decision is read as a whole. When pressed, Mr Marziano was only able to refer to the fact the appellant lived in the UK and went to school in the UK for a lengthy period and had the support of his mother. These matters were unarguably considered by the FTT.

[31]Mr Marziano conceded there was no authority supporting his contended three-stage approach to integration in [7] of the grounds. In any event, he advanced no arguable basis as to how the very scant evidence of rehabilitation could even arguably have swung the balance back in the appellant’s favour in the light of the clear findings regarding the appellant’s history of connections to the UK and the impact of his criminal lifestyle and offending upon this. As it is, we find that the judge gave unarguably adequate reasons for reaching his conclusion on integration.

Ground 2 – Failure to take into account aspects of the expert evidence on PTSD

[32]Mr Marziano properly accepted that in the event ground 1 was found to be unarguable, ground 2 would be unable to demonstrate an arguable error of law on its own. We agree. We deal with ground 2 briefly, should we be wrong about ground 1.

[33]Mr Marziano clarified the focus of his challenge in ground 2 in his oral submissions. He submitted that the FTT should have taken into account the information regarding PTSD, as contained in a report dated 27 October 2022, prepared by Dr Green, a Chartered Clinical Psychologist. The report was prepared in support of an appeal against sentence. Mr Marziano therefore acknowledged that this report attracted less probative weight because it was prepared for purposes unrelated to the FTT proceedings and did not directly engage with the issues in dispute relevant to s. 117C of the 2002 Act and Article 8. It is also of some vintage, applying to the appellant’s circumstances in 2022. At the hearing before the FTT on 11 December 2024, the appellant confirmed he was fit and well, not taking any medication or receiving counselling or therapy.

[34]Despite ground 2 referring to a “wealth of information regarding the appellant’s background which should have been taken into account”, there was no attempt to specify which information was relevant to the question of “very significant obstacles”, let alone why it is said that the information was not taken into account. We invited Mr Marziano to take us to the aspects of the psychological report he relied upon in this regard. He conceded that the report contained no formal diagnosis of PTSD and the witness statements relied upon by the appellant and his mother before the FTT contained no information above and beyond the information contained in the report. He referred us to [8.9] of that report which confirms that the appellant was not currently suffering with PTSD symptoms, albeit there was trauma in his background. The FTT was clearly aware of the psychological report and factored it into the holistic assessment of the “very significant obstacles” assessment, having expressly referred to it at [28], [39] and [40]. The FTT unarguably addressed the relevant mental health issues. No further analysis of the expert report was arguably required.

Ground 3 - Materiality

[35]The appellant’s final ground is parasitic on the first two. He asserts that, had the FTT not erred in the assessment of the appellant’s integration in the UK and the assessment of obstacles to reintegration into Siera Leone, the FTT could have reached a different conclusion on proportionality. As we have found above, there is no arguable error of law in the FTT’s approach to these matters. Therefore, this ground is similarly not arguable. We observe that the offending in question is at the very serious end of the spectrum, as reflected in the 13 year sentence, with a corresponding high public interest in the appellant’s deportation. Even assuming Exception 1 could be said to be met, there was a complete absence of evidence to support “very compelling circumstances, over and above” Exception 1, in order to meet the requirements of s. 117C(6). Notice of Decision Permission to appeal is refused. The grounds of appeal raise no arguable error f law. Judge Plimmer President of the First-tier Tribunal Immigration and Asylum Chamber