An Albanian criminal who secretly returned to the UK after being deported has won the right to remain under the European Convention on Human Rights (ECHR).
Ardit Binaj, 32, was sentenced to two and a half years in prison for theft, released for six months, and deported as part of the prisoner transfer agreement with Albania.
But within a few months he re-entered Britain, in breach of the deportation order, to be with his Lithuanian girlfriend, who had permission to remain in the UK under the Government’s EU settlement scheme.
They later had a baby and got married; this allowed the Home Office to present its successful argument that any attempt to deport him again would violate ECHR Article 8 rights to family life.
The case, revealed in court documents viewed by The Telegraph, will revive calls for the UK to withdraw from the ECHR or seek reform.
Last week Boris Johnson said there should be a referendum on membership of the convention; Critics said this prevented the UK from having full control over immigration policy and impeded the sovereign right to deport criminals or immigrants who entered the UK illegally.
ECHR membership has become a key battleground in the Conservative Party’s leadership race. Robert Jenrick has promised to lead Britain out of this situation, Tom Tugendhat says he would be ready to leave, while Kemi Badenoch and James Cleverly are not in favor of doing so.
Mr Jenrick, the former immigration minister, said Binaj’s case was another example of how the ECHR was preventing the UK from protecting its borders.
“The contract has been expanded beyond recognition and has become a contract for criminals,” he said. “He has repeatedly offered loopholes to dangerous foreign criminals who threaten the British public to avoid deportation.
“8. Reforming the Article is a dream. “The only way we can put an end to this kind of nonsense is to completely break away from the contract and guarantee our own rights.”
The exercise of Article 8 rights has been the target of criticism for more than a decade after it prevented the deportation to Italy of Learco Chindamo, the murderer of school principal Philip Lawrence.
Home Secretary Theresa May claimed the meaning of Article 8 had been perverted by the courts, citing the case of an illegal immigrant who could not be displaced because he had a pet cat. The justices later challenged his interpretation of the case.
Binaj entered the UK illegally in a truck in 2014 and was arrested for theft the following year. In 2016, he was sentenced to 30 months in prison for breaking and entering; He was also sentenced to six months for a separate burglary and 18 weeks for a separate burglary.
The judge at Binaj’s first appeal hearing said the Albanian claimed he wanted early release from prison so he could return to his home country to be with his grandmother, who was very ill and later died.
However, this claim was not accepted by the judge. Instead, he believed he returned to Albania “to avoid serving a prison sentence.”
He re-entered the UK in January 2017, just five months after being deported, but the documents did not say how.
The judge said Binaj deliberately waited for his son to be born in September 2020 before applying for the right to remain in the UK under the EU settlement scheme, “believing this would increase his chances of remaining in the UK”.
A month later he married Diana Bolgova, his girlfriend and the mother of his son. But his application to stay was rejected and in February last year the Home Office moved to deport him once again.
Binaj later claimed that dismissal would violate his rights to family life under Article 8. His lawyers argued that his wife suffered severe anxiety and depressive symptoms after recently learning of the violent death of her mother when Bolgova was 11 years old.
The court was told his wife’s problems were compounded by her grandmother’s illness, the suicide of her aunt’s husband and fears for the health of their son.
The judge acknowledged that it would be “extremely harsh” for him and his son to leave Binaj and that he may not receive necessary medical treatment in Albania.
The fact that Binaj was also working illegally in the UK was not considered to undermine his claim. As a result, the judge accepted the appeal in March this year on the grounds that his Article 8 rights would be violated if he were deported.
Mr Cleverly, then home secretary, appealed the decision on the grounds that deporting Binaj back to Albania was not “unduly harsh” and that there was a strong public interest in deporting a convicted criminal.
However, the judge’s decision was approved by a higher immigration court.
A Home Office spokesman said: “Foreign nationals who have committed crimes can have no doubt that the law will be enforced; where appropriate, we will pursue their deportation and ensure the rules are followed and enforced.
“With 3,000 people having been returned since the new Government came to power, we have begun a major increase in immigration enforcement and return activity to remove people who have no right to be in the UK.”