Guidance drawn up by Conservative ministers which told civil servants to ignore Strasbourg rulings and remove asylum seekers to Rwanda is lawful, the high court has ruled.
The FDA trade union, which represents senior civil servants, brought legal action claiming senior Home Office staff could be in breach of international law if they implement the government’s Rwanda deportation bill.
Lawyers for the union said civil servants could also be in violation of the civil service code – and open to possible prosecution – if they followed a minister’s demands to ignore an urgent injunction from Strasbourg banning a deportation.
In Friday’s ruling, prepared before the general election, Mr Justice Chamberlain dismissed the FDA’s challenge. He said that while civil servants were obliged to refuse to follow instructions that would be unlawful under domestic law, there was 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.”
Last month the high court heard the challenge brought against the Cabinet Office and the now departed prime minister Rishi Sunak, in his role as minister for the civil service, over whether the guidance was 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 expected to carry asylum seekers to Rwanda.
Lawyers for the FDA said civil servants were 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”.
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In his 33-page ruling, 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 it planned to begin removals on 24 July.
Commenting on the outcome of the judicial review, the FDA’s general secretary, Dave Penman, said: “Whilst it is of course disappointing that the claim was denied, the judge has upheld two important principles. Firstly, that if a minister refused to implement a rule 39 order from the European court of human rights, this would indeed be a breach of international law. Secondly, that civil servants’ statutory obligation to ‘comply with the law’ includes international law.”
Labour’s election victory is likely to mean the end of the stalled plan to send people to Rwanda, without a single asylum seeker being deported from the UK.
