Case No. UKUT-00053-(IAC)

4. In paragraph 6 of his determination the judge quoted extensively from the sentencing remarks of the judge in the Crown Court which need not be repeated here. He referred to the circumstances of the offence at some length betwee n paragraph s 7 and 10 of the decision. 5. Having summarised the evidence and submissions before him the judge then set out his findings between paragraphs 34 and 47. They fell into two parts. 6. Paragraphs 34 to 45 set out the judge’s findings in relati on to the 2006 Regulations. In paragraph 45 he conclud ed that the Appellant ’ s behaviour did not satisfy the “serious grounds of public policy or security ” test and hence his appeal should be allowed under those Regulations. The judge plainly demonstrated his understanding that in this case the threshold under r egulation 21 to justify the decision to deport was more demanding than for someone who had not acquired a permanent right of residence. 7. Having reached that conclusion , the judge took the view that it was unnecessary for him to make formal findings in relation to Article 8 , but he nonetheless set out his views in summary form (see paragraphs 46 to 47). A t paragraph 47 the judge said that he would have found that the removal of the Appellant would not have been proportion ate to the legitimate public aim sought to be achieved by the Respondent , paying particular regard to the best interests of the two children, one aged 14 at the time of the decision and the other aged 8. 8. Although not raised in the grounds of appeal, it was pointed out at the outset of this hearing by both legal representatives that the proportionality findings made by the judge at paragraphs 46 and 47 should not have been expressed under Article 8 but should instead have been dealt with under the terms of r egulatio n 21 of the 2006 Regulations. However, after some discussion it became common ground that the merits of this appeal do not turn upon this point . Essentially the same issues would have been considered if the judge had expressed his conclusions under the 2006 Regulations. It is not suggested , for example, that in following the course he did the judge failed to take into account a ny consideration which would have been material had he dealt with proportionality under the 2006 Regulations. At o ne stage reference was made to S ection 117 of the Nationality, Immigration and Asylum Act 2002 but it was agreed during argument that that provision would not have been in play for a proportionality assessment made under the 2006 Regulations. Nonetheless , the Secretary of State maintains her legal challenge criticising the way in which proportionality was addressed by the judge. 9. In paragraph 36 the judge noted that the Appellant had not been convicted of any other offence. 10. In paragraph 37 the judge set out at some length the circumstances relating to the offence , referring once again to parts of the sentencing remarks. Although it is unnecessary for us to set out those m atters , we do note this sentence : “Whilst I accept that the offence was out of character and the Appellant was remorseful the starting point is not the Appellant ’s subsequent contrition but the fear not to say terror he inflicted upon the victim by his persistent efforts to obtain sexua l gratification over a prolonged period of time from a quite innocent neighbour with whom he had no relationship apart from that of neighbour. I find that the Appellant ’s offence was serious.” 11. He then continued between paragraphs 38 to 42 by set ting out in some detail the cross-examination of the Appellant at the appeal hearing about his attitude to the offence, which was significant not least because this sexual offence had caused the victim to suffer significant harm. The judge noted that the Appellant had sought to deflect responsibili ty for the offence and had even gone so far as to suggest that he had simply fallen o n to the victim. It was at that point that the sentencing remarks of the judge in the Crown Court were read out to the Appellant an d he was asked whether he accepted that the tou ching had been sexual , to which he replied “I would not say it was sexual”. The judg e then contrasted that answer with the quite different account given by the Appellant in his re-examination when he said, “very sorry I have no words to say …. I am remorseful about that”. The judge then gave a very careful assessment of his appreciation of this evidence and the Appellant ’s view of his offending. He referred to the significant inconsistency in the answers , which led him to doubt the genuineness of the remorse. He said that his conclusion was reinforced by the account of the offence set out in the NOMS Report and once again the Appellant ’s re action recorded t here. R esponding to the submissions he had heard, the judge said at paragraph 43 that: “I am not persuaded in the light of the above that the Appellant has shown remorse for the offence of which he was convicted. He may be remorseful that he finds himself in his present difficulties but I find that he is not remorseful for the behaviour that he inflicted upon the victim.” 12. The paragraphs which are criticised in this appeal then follow at paragraphs 44 and 45. In paragraph 44 the judge expressed the view that the NOMS Report gave conflicting messages. He then went on to set out correctly his understanding tha t the NOMS Report had concluded that the likelihood of reconviction is in the low category but that was offset or counterbalanced by the conclusion that the risk of serious harm , if further offending were to occur , was in the medium category. The judge expressed the view that that was consistent with the circumstances of the offence and at that point he brought back into his analysis his earlier conclusions about the nature of this offence starting at paragraph 37 of his decision. He then said this, “I find that there is little comfort in knowing that while the risk of re-offending is low, the harm attached to any re-offending is serious”. 13. Paragraph 45 states: “Taking these matters together the scales tip slightly but decisively in the Appellant ’s favour. Were it the case that the risk of re-offending was in the medium category it would be possible to conclude that the requirement of serious grounds of public policy had been established but because the risk of re-offending is low it cannot be the case that even with a medium risk of serious harm that the grounds of public policy have not been established. I find that the Appellant ’s behaviour does not come within the serious grounds of public policy and his appeal should be allowed under the 2006 Regulations.”