Judge rules civil service guidance on Tory government’s Rwanda plans lawful

Conservative ministers’ directives ordering civil servants to carry out deportations to Rwanda despite Strasbourg rulings are lawful, the High Court has ruled.

The FDA union, representing senior government officials, has initiated legal proceedings over the link between the Civil Service Code and the Rwanda Security Act, which was in force under the outgoing government.

Last month, the Supreme Court heard an appeal brought against the Cabinet Office and outgoing Prime Minister Rishi Sunak, as Civil Service Secretary, over the lawfulness of guidance issued in February.

The guidelines state that if the Minister decides to ignore a Rule 39 determination by the European Court of Human Rights (ECtHR) to stay an individual’s deportation to Rwanda, “it is the duty of civil servants under the Civil Servants Code to implement that decision.”

The Rule 39 designation issued by Strasbourg is a provisional measure intended to prevent an “imminent risk of irreparable harm,” and one such order contributed to the grounding of the first flight carrying asylum seekers to Rwanda in 2022.

FDA lawyers said that under the Code, public officials have an obligation to comply with ECHR measures, “and a direction from the Minister not to do so would nullify that obligation.”

But in Friday’s ruling, prepared before the general election, Judge Chamberlain dismissed the FDA’s complaint.

He said that while public officials have an obligation to refuse to obey orders that would be inconsistent with domestic law, there is no equivalent principle in international law.

The judge continued: “Any such rule would make it virtually impossible for a minister to act contrary to international law.

“Because implementing ministerial decisions almost always requires the assistance of civil servants, this would transform almost every international obligation the UK has into a domestic constraint on ministerial action.”

In his 33-page ruling, Mr Justice Chamberlain said there had been no application to adjourn the hearing in light of the call for a general election and the outgoing Conservative government had told the London court it planned to begin removing officials on July 24.

However, a Labour election victory is likely to end a stalled plan to send migrants to Rwanda without deporting a single asylum seeker from the UK.

Following the decision, FDA Secretary General Dave Penman said the dismissal was “disappointing” but welcomed the “clarity” from the Supreme Court.

“Government officials were legally required to uphold the law, and the government deliberately tried to cover up the issue due to internal political differences,” he said.

“The court ultimately ruled that the then government was sufficiently clear about its intention to break international law when it passed the legislation and that parliament had indeed approved of that possibility. That clarity is what we were looking for and the court provided it.

“This was a deliberate act by the government. The vagueness of their position reflected their own internal difficulties and left doubt as to whether domestic legislation was sufficient to replace the obligations of a civil servant under the Civil Service Code.

“No government should ever put the Civil Service in this position. We are grateful to the court for clarifying this issue and for establishing principles regarding breaches of international law and the obligations of public officials to uphold it.”