Fresh guidance tells civil servants to ignore ECHR rulings on Rwanda flights

Ministers will have final say on whether to ignore Rule 39 orders, perm sec confirms
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Home Office officials are set to be told to disregard European court rulings blocking deportation flights to Rwanda, its permanent secretary has confirmed.

Civil servants involved in removals to Rwanda and caseworkers will be issued with fresh guidance saying that ministers’ instructions should override a Rule 39 interim measure of the European Court of Human Rights to block a deportation, Sir Matthew Rycroft said.

The confirmation comes after unions and former civil servants sounded the alarm about the proposals, which they said would force officials to act illegally.

In a letter to cabinet secretary Simon Case yesterday, Rycroft shared draft guidance instructing caseworkers to “immediately refer the case for a ministerial decision on whether or not to proceed with removal” in the event of a Rule 39 measure.

“This must be done without delay, irrespective of when the Strasbourg Court has issued an interim measure. Given the nature of removal flights, officials should be available to advise ministers at short notice and during evenings and weekends,” the guidance reads.

“Home Office officials shall proceed with removal if the relevant minister approves that course of action.”

The instructions will replace existing Home Office guidance on removals under the Illegal Migration Act and safety of Rwanda bill that says “where you have been notified that a R39 indication has been made you must defer removal immediately”, Rycroft said.

It may be amended as the safety of Rwanda bill progresses through parliament, he added.

Ministers have become increasingly frustrated with delays and barriers to the Rwanda scheme, which will see asylum seekers sent to the East African country for "processing" and resettlement. The first flight carrying would-be deportees was grounded in June 2022 by a last-minute ruling by an EHCR judge that prevented it from taking off.

The change in guidance indicates ministers have opted not to take the so-called “nuclear option” of amending the civil service code to force officials to ignore Rule 39 rulings, instead clarifying that their obligation under the code is to follow ministers' instructions even if they violate international law.

Rycroft’s memo was published alongside a separate letter to Case from Darren Tierney, director general of the Cabinet Office’s Propriety and Constitution Group, setting out cross-government guidance on the subject. Both letters were copied to the heads of government departments.

The draft guidance, which would apply to all civil servants, states that “the decision as to whether to comply with a Rule 39 indication is a decision for a minister of the Crown”.

“Parliament has legislated to grant ministers this discretion. The implications of such a decision in respect of the UK's international obligations are a matter for ministers,” his draft guidance read.

“In the event that the minister, having received policy, operational and legal advice on the specific facts of that case, decides not to comply with a Rule 39 indication, it is the responsibility of civil servants – operating under the civil service code –  to implement that decision.”

Tierney said he would write to Case again with final guidance when the safety of Rwanda bill becomes law.

The legislation passed its third reading in parliament yesterday, with threats of a major Conservative backbench rebellion falling flat.

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