[2025] UKUT 00277 (IAC)

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.

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.

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

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.

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.

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.

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.”

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.

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.

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…"

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.

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.

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.

Drawing these threads together, we reach the following general conclusions: