Waele Bittar v Secretary of State for the Home Department

A salaried First-tier Tribunal judge may ordinarily determine an application for permission to appeal against that judge’s own substantive decision. That practice is not inherently procedurally unfair or indicative of apparent bias, and promotes effective use of judicial resources and the overriding objective.

The judge must approach the application dispassionately, with an open mind, and give adequate reasons. The permission decision must not supplement, defend or advocate the substantive decision. A renewed application to the Upper Tribunal challenges the substantive decision, not the First-tier Tribunal’s refusal of permission.

The appellant, a citizen of Sierra Leone, appealed against the refusal of his protection and human rights claims in the context of deportation proceedings. The First-tier Tribunal dismissed the appeal and the same salaried judge later refused permission to appeal.

On renewal, the appellant challenged the practice of permitting the same judge to determine permission applications and alleged that the judge’s wording demonstrated apparent bias or a closed mind. He also maintained challenges concerning integration under section 117C of the Nationality, Immigration and Asylum Act 2002, expert evidence concerning PTSD, and proportionality.

1. Permission practice. The current practice of allocating a permission application to the salaried judge who made the substantive decision does not, in principle, offend procedural fairness or give rise to apparent bias. That judge is well placed to consider whether the decision should be set aside or reviewed, and the practice promotes effective use of judicial time and the overriding objective.
2. Judicial approach. The judge must consider the application dispassionately and with an open mind, give adequate reasons, and avoid using the permission decision to provide supplementary reasons or defend the substantive decision. The use of the first person is not objectionable in itself. The relevant question is whether the decision, read as a whole, demonstrates an open-minded assessment.
3. Renewed applications. A renewed application to the Upper Tribunal is directed against the substantive First-tier Tribunal decision. Extensive argument directed only to the First-tier Tribunal’s permission decision is unlikely to assist the Upper Tribunal.
4. Instant case. The First-tier Tribunal separately assessed the components of section 117C(4), finding that Exception 1(a) was met but Exceptions 1(b) and (c) were not. Its assessment of social and cultural integration was a self-contained assessment and was not infected by its earlier consideration of the public interest in deportation. The approach reflected the principles in Binbuga v SSHD [2019] EWCA Civ 551 and CI (Nigeria) v SSHD [2019] EWCA Civ 2027.
5. The First-tier Tribunal had taken the psychological report and relevant mental-health evidence into account. There was no formal PTSD diagnosis, the report was prepared for a different purpose and the appellant was fit and well at the hearing. No further analysis was arguably required. The third ground was parasitic on the first two and disclosed no arguable error of law.
6. Permission to appeal was refused. The grounds raised no arguable error of law.

• First-tier Tribunal (Immigration and Asylum Chamber): dismissed the appellant’s appeal against refusal of his protection and human rights claims and refused permission to appeal in a separate decision.
• Upper Tribunal (Immigration and Asylum Chamber): refused the renewed application for permission to appeal.