Grounds of appeal
14. It was suggested in the wri tten grounds of appeal that the judge had committed the error of regarding himself as bound by the conclusions expressed in the NOMS Report as opposed to making an assessment for himself of t he circumstances. Quite properl y that argument was no t pursued at the oral hearing. It was untenable. 15. At the hearing before us Ms Brockle sby -Weller for the Respondent advanced a completely new point . She suggested that the words at the beginning of paragraph 45 “taking these matters together” showed that the judge’s conclusions in that paragraph were based upon nothing else other than the NOMS Report as summarised in paragraph 44. On that reading of paragraph 45 , it was then submi tted that it followed that the jud ge had applied the test set by r egulation 21(3) where the risk of “serious harm” resulting from re-offending lies in the medium category, simply by drawing a distinction according to whether the risk of re-o ffending occurring is medium or low . It was then submitted that on that reading of the determination the judge erred in law because, in particular, he failed to take into account other material consideration s, namely the circumstances and ser iousness of the offence and an y implications they have for the assessment of “ serious grounds ” . 16. The merits of this challenge therefore depend critically upon the way in which the decision letter is to be read. It is a well-established legal principle that a decision is to be read fairly and as a whole . 17. We have reached the firm conclusion that the correct way to understand paragraph 45 , and in particular the words “taking these matters together” , is that the judge was taking into account everything which preceded paragraph 45 going back to paragraph 36 and not simply his summary of the NOMS Report in paragraph 44. We have no doubt about this , partl y because paragraph 44 itself refers to the circumstances of the offence and therefore was referring back to what had been set out in paragraph 37 . It is impossible to read paragraphs 44 and 45 as if they constitute a hermetically sealed piece of reasoning which left out of account the earlier parts of this carefully express ed decision. 18. Despite the fact that the judge had made a series of findings which were plainly adverse to the Appellant (see paragraphs 37 to 43) he took the view that the scales were tipped slightly in the Appellant ’s favour. It is therefore clear how his thinking proceeded. Taking paragraphs 36 to 44 together, he plainly reached the view that there were a number of adverse findings against the Appellant which brought this case relati vely close to the “ serious grounds ” threshold s et by r egulation 21(3). It is perfectly clear that according to the judge’s evaluation he concluded that the circumstances of this case taken as a whole did not reach that threshold. B ut he went on to explain how with one change in circumstance the case would have crossed it, namely if the risk of re-of fending had been thought to be medium rather than low. Thus, i t is clea r that in paragraph 45 of his determination the judge did take into account all the matters set out betwe en paragraphs 36 and 44 and no t just simply the NOMS Report as summarised in paragraph 44. It therefore follows that the judge did have in mind his careful assessment of the nature of the offence and indeed the Appellant ’s unsa tisfactory evidence on the issue of remorse as set out between paragraphs 38 and 43 . We are left in no doubt that it would be wholly unrealistic to think that this judge, having taken the trouble to set these matters out in such detail , simply put them to on e side when he came to reach his critic al conclusion in paragraph 45. It is quite possible th at another judge faced with the same evidence might have reached a different conclusion under regulation 21(3), but that is nothing to the point in an appeal which is confined to errors of law. This judge’s reasoning was logical and clearly expressed. It discloses no error of law. 19. The Respondent’s misconstruction of the determination comes about because of an elementary error, namely by reading paragraphs 44 and 45 in isolation and not by reading the decision fairly and as a whole. Experience in this and other appeals by the Respondent leads us to express concern as to whether , before formulating grounds of appeal, sufficient care is being taken within the Home Office to apply well-established principles for identifying an error of law and to appraise fairly and realistically the manner in which judges of the First-Tier Tribunal have expressed their conclusions. 20. The same concern applies to the secon d ground of appeal relating to the T ribunal’s determination under A rticle 8. Although this ground did not find any favour with the judg e granting permission to appeal , we have listened to the argument and will address it briefly . It is plain from what we have said already that the appeal must fail because t he judge’s reasoning on the application of Article 8 was not essential to his decision to allow VV’ s appeal. 21. I t is important to recall tha t the judge began paragraphs 46 and 47 by expressly stating that i n view of his conclusion under r egulation 21(3) it was unnecessary to make findings in relation to Article 8. In other words the judge was making it plain that he was expressing himself in abbrev iated terms, something which ought readily to have been appreciate d, bearing in mind also t he very considerable case load with which the First-T ier Tribunal has to deal. Nonetheless , the Secretary of State has advanced what is no more than a “r easons challenge ” to paragraphs 46 and 47 . 22. Again we feel bound t o question w hether those responsible for launch ing ground s of app eal of this nature are correctly applying in e ach case the law on what must be demonstrated in order to vitiate an a ppeal decision for legal inadequacy of reasonin g. T he case law on this subject is well-established and clear (see eg .