A Smethwick lesbian has been allowed to stay in the UK because to deport her would breach her rights to family life with another woman.
Three Court of Appeal judges yesterday ruled that Emine Krasniqi, a 54-year-old illegal immigrant, can now remain in Britain while the refugee status of her 24-year-old partner is determined.
Both Ms Krasniqi, an Albanian from Serbia, and Albana Lamaj, from Kosovo, fled to the UK after being raped by Serb troops.
They met in Britain and now live together, in Florence Road, Smethwick, bringing up Ms Lamaj's child in a "stable and committed family", said Lord Justice Sedley.
An immigration adjudicator had allowed Ms Krasniqi's appeal against Home Office refusal to grant her asylum because to remove her would violate her Article 8 right to family life enshrined in the European Convention on Human Rights.
The adjudicator heard evidence from both women and found that although there was a sexual component to their relationship, it was "not the central force".
An Asylum and Immigration Tribunal (AIT) allowed an appeal by the Home Secretary, saying the adjudicator had made "material errors of law" and the case was not "exceptional enough" to override the lawful removal.
Lord Justice Sedley said the AIT had no power to interfere with the adjudicator's finding and to hold that the case could not be seen as "truly exceptional" was not fair. The judge cited his reasons as:
* Both women's shocking and destructive experience of public rape by Serb soldiers and the social stigma attached to it
* The probable loss by the appellant of her own two children and her rejection by her husband
* The consequent fragility of the mental and emotional state of both women
* The crucial nature of the love and support they were able to afford each other in this devastating situation and the shared experience of bringing up 'their' child.
He also said that if they were deported to their countries of origin, there was an "extreme unlikelihood that an enforced separation could ever be undone".
At the age of 15, Ms Krasniqi was married off by her father to an older man who already had a family and children and who was repeatedly violent to her.
They had a son and daughter with whom she has now lost contact.
Because her husband was active in an Albanian party, the Serb authorities harassed the family and in May 2000, Ms Krasniqi and her daughter were gang raped by Serb forces.
She came to Britain in August 2000 but it was not until 2004 that her claims to asylum were refused by the Home Office.
By then she had formed her relationship with Ms Lamaj who had had a child with an Albanian man but they had split up. Ms Lamaj's application for asylum failed on appeal in May 2001 but her application for protection on human rights grounds has not yet been decided.
The adjudicator found that the Article 8 right would be breached because either the appellant alone would be removed, since there had been no decision in her partner's case, or the two women would be sent to different countries.
There was also evidence that the appellant would be at risk of suicide if separated from her partner.
But the AIT said Ms Lamaj could chose to go with Ms Krasniqi if she was removed.
Lady Justice Arden said the effect of their ruling at the Court of Appeal will be to "hold the ring" while Ms Lamaj's claim is determined.