An Albanian criminal who sneaked back into Britain after being deported has won the right to stay under the European Convention on Human Rights (ECHR).
Ardit Binaj, 32, was freed just six months into a two-and-a-half year jail sentence for burglary and deported as part of a prisoner transfer agreement with Albania.
However, within months he re-entered Britain in breach of the deportation order to be with his Lithuanian girlfriend, who had leave to remain in the UK under the Government’s EU settlement scheme.
They subsequently had a baby and married, enabling him to lodge his successful claim that an attempt by the Home Office to deport him again would breach his Article 8 ECHR rights to a family life.
The case, revealed in court documents seen by The Telegraph, will revive demands for Britain to quit or seek reforms of the ECHR.
Last week, Boris Johnson said a referendum should be held on membership of the convention, which critics say prevents Britain from having full control of its immigration policy and blocks its sovereign right to deport criminals or migrants who have illegally entered the UK.
ECHR membership has become a key battleground in the Conservative leadership contest. Robert Jenrick has promised to take Britain out of it, Tom Tugendhat has said he would be prepared to leave while Kemi Badenoch and James Cleverly are not in favour of doing so.
Mr Jenrick, the former immigration minister, said Binaj’s case was another example of how the ECHR prevented the UK from securing its borders.
“The convention has been stretched so far beyond recognition that it’s become a charter for criminals. It has repeatedly offered loopholes to dangerous foreign criminals who threaten the British public so they can avoid deportation,” he said.
“Reform of Article 8 is a fantasy. The only way we can put an end to farcical cases like this is if we leave the convention altogether, and guarantee our own rights.”
The use of Article 8 rights has been a target of criticism for more than a decade for barring deportations such as that of Learco Chindamo, the murderer of head teacher Philip Lawrence, to Italy.
Theresa May, when home secretary, claimed Article 8’s meaning had been perverted by the courts, citing the case of an illegal immigrant who could not be removed because he had a pet cat. Judges subsequently disputed her interpretation of the case.
Binaj entered the UK illegally in a lorry in 2014 before being arrested the next year for burglary. He was jailed for 30 months in 2016 for the break-in, alongside a six-month prison term for another burglary and 18 weeks for a separate theft.
The judge in Binaj’s initial appeal hearing said the Albanian had claimed he had sought early release from jail so he could return to his home country to be with his grandmother, who was very ill and subsequently died. But this claim was not accepted by the judge. Instead, she believed he had returned to Albania “to avoid serving his prison sentence”.
Lawyers cite wife’s health
Just five months after being deported, he re-entered Britain in January 2017, although the documents do not say how.
Binah deliberately waited until his son was born in September 2020 before applying for the right to stay in the UK under the EU settlement scheme “as he believed that that would increase his chances of remaining in the UK”, said the judge.
He married Diana Bolgova, his girlfriend and the mother of his son, a month later. But his application to stay was rejected and in February 2023, the Home Office moved once again to deport him.
Binaj then claimed removal would breach his Article 8 rights to a family life. His lawyers argued that his wife was suffering severe anxiety and “depressive symptoms” after recently discovering that her mother had died a violent death when Ms Bolgova was aged 11.
The tribunal was told that his wife’s problems had been compounded by her grandmother’s illness, aunt’s husband’s suicide and a scare over their son’s health.
The judge accepted that it would be “unduly harsh” on her and her son to be separated from Binaj and that she might be unable to get appropriate medical treatment in Albania.
The fact that Binaj was also working illegally in the UK was not judged to have undermined his claim. As a result, the judge granted the appeal in March this year on the grounds that it would breach his Article 8 rights if he were deported.
Mr Cleverly, at that time the home secretary, challenged that ruling on the basis that it was not “unduly harsh” to return Binaj to Albania and that there was a strong public interest in deporting a convicted criminal. But the judge’s ruling was upheld by an upper immigration tribunal.
A Home Office spokesman said: “Foreign nationals who commit crimes should be in no doubt that the law will be enforced, and where appropriate we will pursue their deportation and ensure the rules are respected and enforced.
“We have already begun delivering a major surge in immigration enforcement and returns activity to remove people with no right to be in the UK, with 3,000 people already being returned since the new Government came into power.”
