High Court rejects civil service union's Rwanda scheme challenge

FDA says judgment on controversial Conservative policy gives useful clarity
Former home secretary Priti Patel arrives in Rwanda for the scheme's launch in 2022. Photo: Home Office

By Jim Dunton

05 Jul 2024

A High Court judge has rejected a challenge to elements of the Conservative government's controversial Rwanda deportation policy – which the FDA union said would require departmental officials to break the civil service code.

The FDA, which represents senior leaders in the civil service, said guidance requiring officials to disregard interim rulings from the European Court of Human Rights and proceed with deportation of asylum seekers, if ministers ask them to, put civil servants in "an impossible position".

It argued that the guidance supporting the Safety of Rwanda (Asylum and Immigration) Act, which underpins the Rwanda scheme, would put officials who comply with instructions to proceed with deportations against ECHR advice in conflict with both domestic law and the civil service code.

In a ruling handed down today, Mr Justice Chamberlain said that while civil servants have an obligation to refuse to follow requests for action that would be unlawful under domestic law, there is no corresponding duty in relation to international law.

The ruling says that in situations where domestic law and international law are in conflict, the rules civil servants need to comply with are those set out in domestic law – such as in the 2024 act and its accompanying guidance.

The Conservatives failed to compulsorily send any asylum seekers to Rwanda in the two years and three months between the scheme being launched and yesterday's general election. New PM Sir Keir Starmer has branded the scheme a gimmick and pledged that it will be cancelled under a Labour government, meaning that the FDA's concerns may now never be tested.

FDA general secretary Dave Penman said that while the judge's decision not to support the union's arguments was disappointing, some areas of clarity had emerged. 

"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," he said. "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."

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