[2025] UKUT 00277 (IAC)

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.

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].

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.”

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.

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.