by A Scottish criminal who returned to Britain after being deported won the right to stay under the European Convention on Human Rights (ECHR).
Ardit Binaj, 32, was released just six months into a two-and-a-half-year prison sentence for burglary and was deported as part of a prisoner transfer deal with Albania.
However, within months he re-entered Britain in breach of the deportation order to be with his Lithuanian girlfriend, who was allowed to stay in the UK under the Government’s EU settlement scheme.
They subsequently had a child 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 family life.
The case, revealed in court documents seen by The Telegraph, will revive calls for Britain to withdraw from or seek reforms to 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 over its immigration policy and hinders its sovereign right of criminals or migrants to entered the UK illegally to be deported.
ECHR membership has become a key battleground in the Conservative leadership contest. Robert Jenrick has promised to take Britain out, Tom Tugendhat has said he would be happy to leave although neither Kemi Badenoch nor James Cleverly are in favor 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 has become a charter for criminals. He has repeatedly given loopholes to dangerous foreign criminals who threaten the British public so they can avoid deportation,” he said.
“An amendment to Article 8 is a fantasy. The only way we can put an end to dire situations like this is if we leave the convention in its entirety, and guarantee our own rights.”
The use of Article 8 rights has been a target of criticism for more than a decade in relation to the deportation of such as Learco Chindamo, the murderer of principal Philip Lawrence, to Italy.
Theresa May, who was the home secretary, claimed that the meaning of Article 8 had been challenged by the courts, citing the case of an illegal immigrant who could not be removed because he had a pet cat. The judges later disputed their interpretation of the case.
Binaj entered the UK illegally in a lorry in 2014 before being arrested the following year for burglary. He was jailed for 30 months in 2016 for the break-in, along with a six-month jail term for another burglary and 18 weeks for a separate theft.
The judge at Binaj’s initial appeal hearing said the Albanian claimed he was seeking early release from prison so he could return to his home country to be with his grandmother, who was very ill and later died that. But the judge did not accept this claim. Instead, she believed he returned to Albania “to avoid his prison sentence”.
Lawyers cite the 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 remain in the UK under the EU settlement scheme “because he believed it would increase his chances of staying in the UK” , said the judge.
He married Diana Bolgova, his girlfriend and mother of his son, a month later. But his request to stay was refused and in February 2023, the Home Office again moved to deport him.
Binaj then claimed that his rights under Article 8 were violated to deprive him of family life. His lawyers argued that his wife suffered from severe anxiety and “symptoms of depression” after recently learning that her mother had died violently when Ms Bolgova was 11 years old.
The tribunal was told that her grandmother’s illness, the suicide of her husband’s aunt and fears for her son’s health contributed to his wife’s problems.
The judge accepted that it would be “too hard” for her and her son to separate from Binaj and that she might not be able to get proper treatment in Albania.
The fact that Binaj was working illegally in the UK was not considered to undermine his claim. As a result, the judge allowed the appeal in March this year on the grounds that his expulsion would breach his Article 8 rights.
Mr Cleverly, the home secretary at the time, contested that ruling on the grounds that it was not “too harsh” to return Binaj to Albania and that there was a strong public interest in deporting a convicted criminal. But a higher immigration tribunal upheld the judge’s ruling.
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 that the rules are respected and they are in place.
“We have already started a major boost in immigration enforcement and action is back to remove people who have no right to be in the UK, and 3,000 people have already returned since the new Government came to power .”
