England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION & ASYLUM CHAMBER)
[Appeal No: IA/00474/2011]

		Royal Courts of Justice Strand, London, WC2A 2LL
		21st March 2013

Lord Justice Richards:

1. This is a case listed under the title AJ (Bangladesh). Anonymity was in fact discharged at the stage of the grant of permission. We take the view, however, that it is right to restore anonymity in accordance with the decision reached by the Upper Tribunal, for the purpose of protecting the identity of the children concerned.
2. The appellant is a national of Bangladesh who came to the UK in December 1988 when he was ten years old. He was granted indefinite leave to remain. In June 2001 he married his present wife while on a visit to Bangladesh, and she came to the UK in May 2002. At the time of the decision under appeal they had two sons, born in July 2003 and July 2004 respectively. The wife was granted British citizenship in September 2008 and the sons are also accepted to have British citizenship. We are told in the written papers that there is now also a third child, but we say no more about him or her because his or her birth postdates the decision under appeal.
3. In October 2005 the appellant was convicted of offences of indecent assault, sexual assault and false imprisonment for which a ten-year extended sentence was imposed, with a custodial term of five years and a licence extension period of five years. In December 2007 a decision was made to deport him on conducive grounds in the light of his convictions. An appeal against that decision was dismissed by the Asylum and Immigration Tribunal. A deportation order was then made in August 2008.
4. A fresh claim based on human rights was treated as an application to revoke the deportation order, but the application was refused and an appeal against that refusal was dismissed by the Asylum and Immigration Tribunal in September 2009. A further human rights claim was the subject of a substantial procedural history, but the outcome was that it was treated as a yet further application to revoke the deportation order and was refused. An appeal against that decision was dismissed by the First-tier Tribunal in July 2011 but on further appeal the decision was set aside by a panel of the Upper Tribunal comprising Upper Tribunal Judges Jordan and Kopieczek. They remade the decision but reached the same conclusion, dismissing the appeal under Article 8 of the European Convention on Human Rights and under the Immigration Rules by a determination promulgated on 8 May 2012. The matter now before us is an appeal against that determination of the Upper Tribunal. Permission to appeal was granted on a limited basis by Sir Richard Buxton.
5. Ms Harriet Gore for the appellant submitted in a skeleton argument that the issue for this court is "whether deporting the Appellant is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others", a formulation couched in the language of Article 8. That, however, is not the issue for this court. The court is concerned with a much narrower question, whether there was a material error of law in the Upper Tribunal's determination, in particular in reaching its conclusion that the deportation was proportionate to the legitimate aim of the prevention of disorder and crime and would not therefore be in breach of the rights of the appellant and his family under Article 8.
6. In order to decide that question, it is necessary first to summarise the determination itself, whilst stressing that even a full summary does not do full justice to the Tribunal's detailed and conscientious assessment of the evidence before it.
7. The Tribunal said that the focus of the argument was on Article 8. The appellant lived with his wife and two children and clearly had family life with them. The children were well settled at school and had begun to establish lives outside their families and were British citizens. It would be unreasonable to expect them to return to Bangladesh with the appellant. Since plainly they could not be with their mother, she too could not be expected to return to Bangladesh with him. Deportation would therefore amount to an interference with family life. Further, the appellant had arrived in the UK when he was ten years of age and removing him would plainly be an interference with his private life. The interference with family and private life would have consequences of sufficient gravity as potentially to engage the operation of Article 8.
8. The Tribunal said that the deportation decision was in accordance with the law and pursued the legitimate aim of the prevention of disorder and crime, and then stated at paragraph 27:

"The issue is one of proportionality. The starting point is a consideration of the best interests of the appellant's two children, those best interests being a primary consideration. We proceed on the basis of the assumption that, ordinarily, a child's best interests are served by living with both parents. Notwithstanding the appellant's convictions for serious offences, there is nothing to indicate that his offending has in a direct way affected them, in the sense of putting them at risk."

9. The Tribunal then engaged in a lengthy consideration of the report of a consultant clinical psychologist, Dr Howard Fine, including his summary conclusions that while residing in the UK the family had developed a solid foundation for their children which had benefited them academically, emotionally and socially; that it would be highly disruptive to the children, both immediately and in the future, if their father were deported; that family life would cease to function as it had previously; that the appellant was an important factor in the functioning of the family and that for him to be deported would adversely impact on all of them as a family and as individuals.
10. A core risk assessment by the local authority's social services department, which the Tribunal considered next, was said to reflect the assessment in Dr Fine's report, including reference to the adverse effect on the children of the appellant's absence while in prison, and to their mother's reliance on the appellant in practical day-to-day activities. The risks associated with his deportation were said to be that the children might not have appropriate emotional support when needed and might be exposed to their mother's heightened mental health issues without support from the appellant. They would be emotionally distressed in the initial stages of separation, owing to their strong and secure attachment with their father. This could negatively affect their learning and future relationship building. They would not have support in accessing their western cultural needs, which the appellant currently met. They might become socially isolated. They might also be exposed to western gang culture owing to the language barrier and their lack of experience of growing up in an inner-city borough. There would be a great emotional and social effect on them. They displayed a strong attachment to their parents and wider family and did not wish to move to Bangladesh.
11. A letter from the children's school was to similar effect. The witness statements of the appellant and his wife, and a letter from the appellant's father, were further evidence of a close relationship that he had with his children.
12. On the basis of that material, the Tribunal reached the clear and unsurprising conclusion that it was in the children's best interests for the appellant to remain with them. I quote from the latter part of paragraph 39:

"All the evidence points in favour of the conclusion that, notwithstanding the appellant's offending and the gambling and debts that appear to have accrued at about the time of these offences, the best interests of his children are that he should remain with them as part of their family unit."

13. In paragraph 40, the Tribunal stated that it had, however, been recognised in various authorities, to which they referred later, that in some cases involving very serious offending, deportation of the offending parent might nevertheless, depending on the circumstances, be proportionate. The Tribunal noted the decision in Sanade & Ors (British children – Zambrano – Dereci) [2012] UKUT 00048 (IAC), observing that that was a case on automatic deportation, which was not the subject of the appellant's appeal, but that the guidance in it so far as relevant to the issues in the appellant's case was reflected in the Tribunal's decision.
14. The Tribunal proceeded to consider the appellant's offending. The offences of which he had been convicted involved posing as a mini-cab driver at night and luring vulnerable girls into his vehicle as they came out of a night club or were out on the street. He then effectively imprisoned them in his car and sexually assaulted them. The sentencing judge described them as terrifying incidents for the girls and said that this type of offending was a public menace. Moreover the appellant had been stopped and questioned about the first offences in March 2004 but had persisted in his conduct, committing like offences in October 2004, until an undercover operation had led to his arrest.
15. The Tribunal engaged in an extensive assessment of future risk, referring for this purpose to the judge's sentencing remarks, an offender assessment report prepared by the Probation Service, a parole assessment report, and the assessment of the panel of the Parole Board itself. It noted that the appellant had not committed any offences since his release in June 2008 and that he appeared to have returned to a settled life with his wife and children. There was no evidence of a recurrence of his gambling behaviour. He had attended sexual offences treatment programs while in custody, and since his release. The Tribunal gave detailed consideration to a report of a consultant psychiatrist, Dr Persaud, which had concluded that the risk of reoffending was low. The Tribunal also considered criticisms made of that report in the Secretary of State's decision letter. The conclusion reached by the Tribunal was that the risk of reoffending was presently low, albeit there was a risk and that risk would increase if the appellant's circumstances changed in terms of his relationship with his family or if he fell into bad company as before.
16. Having dealt with that topic, the Tribunal referred next to the decision of the European Court of Human Rights in Uner v The Netherlands [2007] 45 EHRR 14, a leading authority on the factors to be taken into account in a proportionality balancing exercise of this kind. Passages from that decision that the Tribunal set out included the list of relevant criteria at paragraph 57, namely the nature and seriousness of the offence committed by the applicant; the length of the applicant's stay in the country from which he or she is to be expelled; the time elapsed since the offence was committed and the applicant's conduct during that period; the nationalities of the various persons concerned; the applicant's family situation, such as the length of the marriage and other factors expressing the effectiveness of a couple's family life; whether the spouse knew about the offence at the time when he or she entered into a family relationship; whether there are children of the marriage and, if so, their age; and the seriousness of the difficulties which the spouse is likely to encounter in the country to which the applicant is to be expelled. The Tribunal also set out the two criteria made explicit in paragraph 58 of the judgment in Uner, namely the best interests and wellbeing of the children and the solidity of social, cultural and family ties with the host country and with the country of destination.
17. Moving on to apply those criteria, the Tribunal stated at paragraphs 58, 59 and 60:

"58. Plainly, the offences for which the appellant was convicted are very serious, as reflected in the sentencing remarks and in the actual sentence that was imposed with [an] extended period of licence for public protection. We note that the appellant arrived in the UK when he was 10 years of age; he is now aged 33. The offences were committed up to October 2005. During that time the appellant has not been able to reoffend whilst he has been in custody but there have been no offences since his release.

59. The appellant is from Bangladesh, as is his wife, although she and the children are British citizens. We have already expressed our view as to the reasonableness of expecting the appellant's wife and children to return to Bangladesh. His family situation is a matter on which we have already commented, taking the view that he has now re-established a settled family life. We are prepared to accept that the appellant's wife did not know about the offences that the appellant was committing, although there is some indication that there may have been a suspicion on her part as to his behaviour. That however, in our view, is not a relevant consideration and we proceed on the basis that she was completely unaware of his offending. Again, we have taken into account the fact that he has two children aged 7 and 8 and his close relationship with them as disclosed by the evidence to which we have referred. We have taken into account the best interests of the children as set out above.

60. It is evident that the appellant, having been in the UK for many years, has established deep roots here. . We have not heard anything about his social ties except that he fell into bad company in relation to gambling. Nevertheless, we bear in mind that he has been in various employments over the years and was employed as a bus driver."

18. .The Tribunal accepted in addition that the appellant's parents were in the United Kingdom, that he had siblings resident here and that he and his wife remain close to his parents and siblings. His parents did, however, also have relatives in Bangladesh, and the Tribunal's assessment was that if the appellant returned to Bangladesh it would not be a completely alien environment to him, he having relatives there and some familiarity with the language and having visited the country, albeit apparently on only one occasion since coming to the UK. Those matters were considered in paragraphs 61 to 62 of the determination. The Tribunal continued:

"63. We take into account the effect of the appellant's removal, in particular on his wife and children. We have no doubt at all that were the appellant to be removed it would be very distressing for the children, hardly mitigated by the occasional visit or contact by phone or letter. There is little to be said for the proposition in favour of removal that they have experienced life without their father already whilst he has been in prison. That is true, but it is evident that they value his presence very highly and are anxious at the prospect of his being removed.

64. So far as the appellant's wife is concerned, there is evidence that she suffers from depression and that whilst the appellant was in prison she had difficulty bringing up the children on her own. We accept the evidence in this regard, also accepting that her language skills make it difficult for her to cope in some circumstances...We accept that his removal would have a significant impact on her and, for the reasons already given, on the children. The letter from the appellant's father, undated though it is, is evidence that his removal would also be keenly felt by his parents.

65. Similarly, it should not be overlooked that the appellant's removal would undoubtedly have a profound effect on him, separating him from his wife and children, as well as from his parents. He would also be removed from the country to which he has become accustomed and in which the lifestyle, culture, language and customs are familiar to him. There would be some corresponding unfamiliarity with all those things if the appellant were to return to Bangladesh, subject to the observations we have already made about his connections with that country."

19. There follows in the Tribunal's decision an important paragraph concerning the public interest side of the balance:

"66. Although we have accepted that the risk of reoffending in the present circumstances is low, we take into account the decision in N (Kenya) [2004] EWCA Civ 1094 and what was said about the public policy need to deter and to express society's revulsion at the seriousness of the criminality. We also take into account what was said at paragraph 65 of N (Kenya) about the risk of reoffending being a factor in the balance but not the most important public interest factor in the case of very serious crimes. . The decision in OH (Serbia) [2008] EWCA Civ 694 reflects and reinforces what was said by the Court of Appeal in N (Kenya) and restates the proposition that proper weight must be given to the Secretary of State's policy on deportation and her view as to the public interest warranting deportation in cases of serious crime. The policy factors in favour of deportation were repeated by the Court of Appeal in AP (Trinidad and Tobago) [2011] EWCA Civ 551 at paragraph 44. The principle of deterrence expressed in N (Kenya) is again reiterated in RU (Bangladesh) [2011] EWCA Civ 651 at paragraph 43 in which it was said that:

'The point about 'deterrence' is not whether the deportation of a particular 'foreign criminal' may or may not have a deterrent effect on other prospective offenders. It concerns a much more fundamental concept which is explained by Judge LJ at [83] of his judgment in N(Kenya). The UK operates an immigration system by which control is exercised over non-British citizens who enter and remain in the UK. The operation of that system must take account of broad issues of social cohesion in the UK. Moreover, the public has to have confidence in its operation. Those requirements are for the 'public good' or are in the 'public interest'. For both of those to requirements to be fulfilled, the operation of the system must contain an element of deterrence to non-British citizens who are either already in the UK (even if refugees) or who are thinking of coming to the UK, 'so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation'. That element of 'public interest' or 'public good' is a part of the legislative policy, declared by Parliament in section 32(4) of the UKBA, that the deportation of 'foreign criminals' is conducive to the public good.'"

20. The Tribunal said next that it was important to bear in mind that neither the wife nor the children were to be blamed for the offending and that the appellant's removal would effectively split up the family. All the evidence pointed to that having a profound and long-lasting effect on his children in particular, but also on his wife. The period of exclusion would be indefinite. The offences were such that revocation of the deportation would not normally be authorised unless the situation had materially altered by change of circumstances, fresh information or the passage of time.
21. Having acknowledged those serious consequences of the appellant's deportation, the Tribunal continued at paragraph 69:

"Recognising the consequences of the removal of the appellant, we are nevertheless satisfied that that removal is proportionate to the legitimate aim of the prevention of disorder and crime, taking into account all the factors to which we have referred. This is not a conclusion we come to lightly in view of the very serious consequences for the family of his removal."

22. Reference was then made to the case of AD Lee v SSHD [2011] EWCA Civ 348 in which Sedley LJ, giving the judgment of the court, stated in relation to that case that:

"The tragic consequence is that this family, short-lived as it has been, would be broken up for ever, because of the appellant's bad behaviour. That is what deportation does."

The Tribunal said that the facts of that case were different in many respects and that the appellant's relationship with his family was not by any means short-lived; but, in the Tribunal's view, this was one of those cases in which the proportionality question fell to be resolved in the Secretary of State's favour.

23. In his reasons for granting permission to appeal, Sir Richard Buxton said this, and I quote the passage in full because it provides what should be the proper focus for the case before us:

"The applicant has no basis for complaint on his own behalf. His long presence in this country was properly noted, as was the limited extent to which he was likely to reoffend. But the tribunal was entitled to hold that the offence was extremely serious, of a sexual nature, and well met the need for deterrence that has been reiterated by this court in the series of decisions referred to by the Tribunal in paragraph 66 of its Determination.

I do grant permission in respect of the effect of deportation on the children and, to a lesser extent, on the wife. While it is important not to overstate the guidance in ZH (Tanzania), the examination of the impact of deportation on the children seems to have taken place as a factor in the applicant's case, rather than as a freestanding consideration of the interests of the children themselves. The tribunal may not have been assisted in this respect by the terms of the argument before it; but having found, Determination para 67, that removal would have a profound and long-lasting effect on the children in particular, but also on the wife, the tribunal arguably needed to explain why the best interests of the children did not militate against that removal."

24. I have given careful consideration to the concerns that prompted Sir Richard Buxton to grant permission to appeal, even though the submissions made by Ms Harriet Gore on the appellant's behalf paid scant attention to those concerns. With great respect to Sir Richard, on analysis of the Tribunal's determination I do not accept that the Tribunal examined the impact of deportation on the child, or indeed on the wife, merely as a factor in the appellant's case rather than as a freestanding consideration of the interests of the children and the position of the wife themselves. I accept the submission made in the skeleton argument of Ms Lisa Busch for the Secretary of State that the Tribunal addressed the question of what was in the children's best interests independently and directly in the light of the evidence before it. In the light of that evidence, the Tribunal made a clear finding that it would be in the children's best interests for the appellant to be permitted to remain in the UK and it made an equally clear finding that it was necessary for the wife to remain in the UK in order to be with the children. All that emerges from the summary that I have given of the Tribunal's decision, and I think it unnecessary for me to repeat any part of that summary or to go into any further detail, though I would lay stress in particular on the passages I have quoted from paragraphs 39 and 63 to 64 of the determination. It is also plain from paragraphs 67 and 69, among other paragraphs, that the Tribunal had firmly in mind the serious consequences of removal on all members of the family and were not considering the matter simply from the appellant's perspective or as a factor in the appellant's own case.
25. Having identified the adverse consequences of removal for all the members of the family, the Tribunal proceeded at paragraph 66, in expansion of a point considered earlier, to consider whether those adverse consequences and the interests of the family were outweighed by the public policy considerations telling in favour of removal. The conclusion reached was that those considerations were such as to render removal proportionate. The Tribunal might have gone into more detail by way of explanation why such considerations rendered removal proportionate notwithstanding that it was contrary to the best interests of the children, but its essential reasoning was again, in my judgment, clear enough. It was open to the Tribunal to reach the conclusion it did notwithstanding that the interests of the children were a primary consideration: as the Tribunal had well in mind, the best interests of children are indeed a primary consideration but they are not the primary consideration necessarily outweighing all other factors.
26. I should stress that the best interests of the children and the consequences for the children if the appellant is deported make this a particularly anxious case and help to explain why permission to appeal was granted. But I am satisfied that they were given appropriately anxious consideration by the Tribunal and that the Tribunal upheld the deportation decision only because it properly considered that those considerations, weighty though they were, were outweighed by the policy considerations in favour of removal.
27. Having dealt in those terms with the reasons why permission to appeal was granted, I will turn to consider briefly the various other points advanced by Ms Gore, though I have some doubt as to whether various of them were covered by the scope of the permission granted.
28. First, Ms Gore advanced the proposition that the Tribunal simply failed to consider the necessity for the appellant's removal. That seems to me to be a fundamental misconception on Ms Gore's part. The necessity test under Article 8 is explained in a long series of authorities, including the case of Uner as quoted by the Tribunal in paragraph 57 of their determination. As it was put there, decisions to remove must be in accordance with the law and necessary to a democratic society: that is to say, justified by a pressing social need and, in particular, proportionate to the legitimate aim pursued. The Tribunal's focus on the question whether deportation in this case would be proportionate to the legitimate aim pursued was fully in accordance with the well-established principles concerning the application of Article 8. There was no misdirection. The Tribunal dealt with the correct test in terms in a number of places in its determination, not least in the conclusion of paragraph 69 which I have read out.
29. A second submission by Ms Gore is that the Tribunal, having set out the Uner criteria at paragraph 57, went on to apply those criteria at paragraphs 58 to 65 but was tne wrong to go on at paragraph 66 to consider the considerations of public policy set out in that paragraph. It is said that the Tribunal should have stopped at paragraph 65 and that, by going on to deal with the matters set out in paragraph 66, the Tribunal effectively engaged in a form of double-counting, having already referred at paragraph 58 to the seriousness of the offence which triggered the decision to deport.
30. To my mind, that is another misconception on Ms Gore's part. Consideration of the public policy matters set out in paragraph 66 was an essential element in the balancing exercise. The seriousness of the offence was touched on in paragraph 58 but more needed to be said about the related policy considerations, and those additional matters were properly covered by the Tribunal in paragraph 66. Ms Gore denied that she was making a merely structural point about the way in which the Tribunal dealt with matters, but it seems to me that the point she was making was simply one of form, not of substance. So far as substance is concerned, the Tribunal approached the issues in the right way.
31. I deal thirdly with a variety of points made by Ms Gore in her further skeleton argument and in her oral submissions, taking those points together. They involve various arguments on the subject of punishment and deterrence. It is said that the Tribunal wrongly treated the principle of deterrence as an overriding principle mandating the dismissal of the appeal; that it was wrong to conclude that deporting the appellant would act as a deterrent, alternatively wrong to conclude that it would be a weighty enough deterrent to override all other factors. Linked with that is the suggestion that the appellant no longer poses a danger to the community and that his presence in this country does not encourage non-British citizens to commit crime. A further submission is that deporting the appellant for reasons of deterrence would amount to further punishment for his crimes, which have been sufficiently punished by the criminal justice system. Reference has been made orally by Ms Gore to the detailed terms of the judge's sentencing remarks, both as showing that the purpose of the sentence passed was itself to deter and as showing the constraints to which the appellant would be subject if he remains in the United Kingdom by reason of the conditions of his licence. The suggestion was made that the particular facts of the present case distinguish it from those of, for example, N (Kenya), to which the Tribunal referred at paragraph 66 of its determination, and bring it closer to the circumstances of Sanade, to which the Tribunal referred in paragraph 40.
32. I do not accept any of those submissions. In paragraph 66 the Tribunal directed itself correctly by reference to a series of authorities on the public policy considerations in play in a deportation case. N (Kenya) is important for its statement of principle. May LJ stated at paragraphs 64 to 65 of that case that, where a person who is not a British citizen commits a number of very serious crimes, the public policy side of the balance will include importantly, though not exclusively, the public policy need to deter and to express society's revulsion at the seriousness of the criminality; and that the risk of reoffending is also a factor in the balance, though for very serious crimes risk of reoffending is not the most important public interest factor. Judge LJ, as he then was, said at paragraph 83 that the concepts of public good and public interest that are relevant in this field engage broad issues of social cohesion and public confidence in the administration of the system by which control is exercised over non-British citizens who enter and remain in the UK. They include an element of deterrence to non-British citizens already in this country and to those likely to come here, so as to ensure that they clearly understand that, whatever the circumstances, one of the consequences of serious crime may well be deportation.
33. The effect of what was said in that case was summarised by Wilson LJ in OH (Serbia) v SSHD [2008] EWCA Civ 694 at paragraph 15 in a series of propositions:

"(a) The risk of reoffending is one facet of the public interest but, in the case of very serious crimes, not the most important facet.

(b) Another important facet is the need to deter foreign nationals from committing serious crimes by leading them to understand that, whatever the other circumstances, one consequence of them may well be deportation.

(c) A further important facet is the role of a deportation order as an expression of society's revulsion at serious crimes and in building public confidence in the treatment of foreign citizens who have committed serious crimes.

(d) Primary responsibility for the public interest, whose view of it is likely to be wider and better informed than that of a tribunal, resides in the respondent and accordingly a tribunal hearing an appeal against a decision to deport should not only consider for itself all the facets of the public interest but should weigh, as a linked but independent feature, the approach to them adopted by the respondent in the context of the facts of the case."

Essentially the same ground was gone over in AP (Trinidad and Tobago) v SSHD [2011] EWCA Civ 551 and RU (Bangladesh) v SSHD [2011] EWCA Civ 651, to both of which the Tribunal in the present case also referred at paragraph 66 of its determination.

34. What is clear from all of this is that deterrence serves a broad policy purpose in this context. As Aikens LJ said in RU at paragraph 43, the point about deterrence is not whether the deportation of a particular foreign criminal may or may not have a deterrent effect on other prospective offenders. It is an element of the public interest or public good that forms part of legislative policy, now declared by Parliament in section 32 of the UK Borders Act 2007, that the deportation of foreign criminals is conducive to the public good, and although we are not concerned in this case with the automatic deportation provisions of the 2007 Act, the same policy considerations underlie deportation on conducive grounds under the earlier legislation with which this case is concerned.
35. So, coming back to Ms Gore's submissions, the Tribunal was right not to ask itself what, if any, specific deterrent effect the deportation of the appellant himself would have when viewed on its own but to have regard to the wider policy considerations, including deterrence, vouchsafed by the line of authority to which I have referred. The Tribunal took that properly into account as one of a number of factors on the public policy side of the balance. It did not treat it as an overriding factor. It considered it in conjunction with the seriousness of the appellant's own offending, that is to say considering the particular features of his case as well as the public policy considerations to which those features gave rise. It also gave detailed attention to the risk of reoffending, while recognising that that is not the most serious public interest factor in the case of serious crimes. As to that, it reached the conclusion properly open to it, not that the appellant posed no danger to the community, as Ms Gore contended in her written submissions, but that the risk of reoffending was low as things currently stood. In all of this, the Tribunal directed itself correctly in law. It applied the law to the facts with great care and it reached a conclusion on proportionality that, as I have already indicated, was reasonably open to it. And if and insofar as some of Ms Gore's arguments are to be characterised as a challenge to the rationality of the Tribunal's findings, I reject them.
36. I referred earlier in this judgment to Ms Gore's description of the issue for this court in terms of whether deportation of the appellant is necessary in a democratic society. Her submissions on the aspect of the case I have just been dealing with were in places couched in similar terms, as if we were the primary decision-maker. But it must be underlined that we are concerned with an appeal on a point of law. Our function is to determine whether there was any material error of law in the Tribunal's determination. On the Article 8 issues, for the reasons I have given, I am satisfied that there was no such error.
37. Ms Gore advanced a separate argument to the effect that Article 3 is engaged by reason of the profound and long-lasting psychological damage that may be caused to the children and their mother by reason of the appellant's deportation. There was no such suggestion before the Tribunal. The point is not included in the grounds of appeal. Ms Gore suggested in her written submissions that the issue arises out of Sir Richard Buxton's reasons for granting permission to appeal. That is a straightforward misunderstanding of his reasons. There was no issue under Article 3 before the Tribunal; there is none properly before this court. The attempt to introduce such an issue is misconceived, and the matters that Ms Gore relied on are incapable in any event of engaging Article 3.
38. For the reasons given, I would dismiss this appeal.

Lord Justice McFarlane:

39. I agree.

Lord Justice Lewison:

40. I also agree.

Order: Appeal dismissed.