Guidance from Conservative ministers which tells civil servants to carry out removals to Rwanda in spite of rulings from Strasbourg is lawful, the High Court has ruled.
The FDA trade union, which represents senior civil servants, brought legal action over the relationship of the Civil Service Code with the outgoing government’s Safety of Rwanda Act.
Last month the High Court heard the challenge brought against the Cabinet Office and departing Prime Minister Rishi Sunak, in his role as Minister for the Civil Service, over whether the guidance issued in February is lawful.
The guidance says that if a minister decides to ignore a Rule 39 indication from the European Court of Human Rights (ECHR) to stop a person’s removal to Rwanda, “it is the responsibility of civil servants under the Civil Service Code to implement that decision”.
A Rule 39 indication from Strasbourg is an interim measure to prevent “imminent risk of irreparable harm”, with one such order contributing to the grounding in 2022 of the first flight set to carry asylum seekers to Rwanda.
Lawyers for the FDA said civil servants are required by their code to comply with measures from the ECHR, “and an instruction from a minister not to do so would override this obligation”.
But in Friday’s ruling, prepared prior to the General Election, Mr Justice Chamberlain dismissed the FDA’s challenge.
He said that, while civil servants are obligated to refuse to follow instructions that would be unlawful under domestic law, there is no equivalent rule regarding international law.
The judge continued: “Any such rule would make it practically impossible for a minister to act contrary to international law.
“Since the implementation of ministerial decisions almost always requires the assistance of civil servants, it would transform almost every obligation binding on the United Kingdom on the international plane into a domestic constraint on ministerial action.”
In his 33-page ruling, Mr Justice Chamberlain said no application to adjourn the case was made in light of the General Election being announced, with the departing Conservative government having told the court in London that it planned to begin removals on July 24.
However, Labour’s election victory is likely to mean the end of the stalled plan to send migrants to Rwanda, without a single asylum seeker being deported from the UK.
Following the decision, FDA general secretary Dave Penman said it is “disappointing” that the challenge was denied, but welcomed “clarity” from the High Court.
“Civil servants were faced with legal obligations to comply with the law and a deliberate attempt by government to fudge this issue due to their own internal political differences,” he said.
“The court has ultimately decided that the then-government was explicit enough about the intent to break international law when passing the legislation, and that Parliament had indeed sanctioned that possibility. Clarity is what we were seeking and the court has provided that.
“This was a deliberate act from government. The vagueness of their position reflected their own internal difficulties, and left the matter of whether domestic legislation was sufficient to supersede a civil servant’s obligations under the Civil Service Code in doubt.
“No government should ever put the Civil Service in this position. We are grateful to the court for bringing clarity over this point, as well as establishing the principles around breaches of international law and civil servants’ obligations to uphold it.”
