PCS issues legal action warning to MoD over Rwanda scheme

Union warns it will begin legal proceedings unless the defence secretary rules out assisting with the scheme
Royal Air Force aircraft. Photo: Colin Fisher/Alamy

By Tevye Markson

19 Jun 2024

The civil service’s biggest union has warned defence secretary Grant Shapps it will take the Ministry of Defence to court over the Rwanda scheme unless he rules out the department’s involvement in removing asylum seekers to the country.

PCS, working with solicitors Duncan Lewis, has sent a pre-action letter to Shapps, putting him on notice of a legal challenge unless he quashes reports that the MoD could assist in flying asylum seekers to Rwanda.

In April, the government passed the Safety of Rwanda (Asylum and Immigration) Act 2024, which gives ministers the power under UK law to decide whether to comply with any interim measure issued by the European Court of Human Rights in relation to deportations of asylum seekers to Rwanda. Further guidance issued by the Cabinet Office spells out that civil servants must comply with any instruction from ministers to disregard such ECHR rulings. 

PCS's ultimatum follows action launched by the FDA union over the Rwanda scheme earlier this year. The High Court recently heard the FDA's claim that civil servants who comply with ministers' instructions to proceed with deportations against ECHR interim rulings will be breaking domestic law and the civil service code. That case is awaiting a decision.

PCS’s warning relates specifically to the potential involvement of the MoD in the scheme, amid reports that the government has been struggling to convince a commercial airline to participate in the scheme and will turn to the MoD to assist.

The union said the MoD is not covered by the Safety of Rwanda legislation and so any assistance it provides would be in breach of the Human Rights Act, including the prohibition on torture or inhuman or degrading treatment or punishment.

It has given Shapps seven days to respond. "In the event of an unsatisfactory response, the union will take steps to issue judicial review proceedings,” it said.

Paul O'Connor, head of bargaining at PCS, said the union had exposed “a gaping hole at the heart of the new legislation”.

“While it places an obligation on the home secretary and Home Office officials to assume that Rwanda is safe, it places no such obligation on the secretary of state for defence, who must therefore abide by the Supreme Court's ruling. We believe that the government will not therefore be able to engage the Ministry of Defence to assist in organising any flights to Rwanda.”

O’Connor said the government “has lurched from one disaster to another over this cruel, inhumane and wholly unnecessary policy, at colossal expense to the UK taxpayer”.

“It should abandon this ridiculous scheme and engage with us on our safe passage proposals, which are the only sensible solution to the small boat crossings,” he added.

Maria Thomas from Duncan Lewis said PCS’s proposed legal action “illustrates how ill thought through the Rwanda legislation is, and how it remains entirely unworkable, irrespective of whether July 4 brings a change of government”.

“The insistence on a first flight taking off on 24 July in the event the Conservative government remains in power simply won’t be possible pursuant to the Safety of Rwanda Act, devised exclusively to circumvent the Supreme Court’s judgment, in circumstances where the government may be dependent on the MoD to give effect to their legislation.”

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