Union threatens legal action over Rwanda bill

FDA union outlines concerns about guidance instructing Home Office staff to ignore European court rulings which block deportations to Rwanda
Home secretary James Cleverly arriving in Kigali in December to sign a new deal with the Rwandan government. Photo: Ben Birchall/PA Wire/Alamy stock photo

The FDA union has threatened the Home Office with legal action over concerns that civil servants could be in breach of international law if they implement the government’s Rwanda bill.

In a letter to home secretary James Cleverly, FDA general secretary Dave Penman said the union is concerned about guidance instructing Home Office staff to ignore rulings by the European Court of Human Rights issued to block a deportation under the Rwanda scheme.

“The concern of the FDA and many of its members is that if ministers instruct civil servants not to comply with an interim measures indication, they will be putting the UK in breach of international law,” the letter, seen by The Guardian, said.

The union “may require legal proceedings” to clarify the matter, it added.

The Rwanda bill, which states that ministers will have the power to decide whether to comply with so-called Rule 39 orders issued by ECHR judges, is set to return to the Commons next week. Ministers hope to begin sending asylum seekers to the east African country shortly after the bill is signed into law, after previous flights were scuppered by European court rulings.

In the letter, Penman said civil servants could be open to prosecution – as well as breaking the civil service code, which says they must obey the law – if they follow ministers’ instructions to ignore a Rule 39 measure.

He  said that “difficulty arises because civil servants have personal legal obligations under domestic law not to act contrary to international law.

"That obligation is not capable of being overwritten by any ministerial instruction or guidance," Penman added.

The letter comes two months after Home Office permanent secretary Sir Matthew Rycroft said his staff would be issued with fresh guidance saying ministers’ instructions would override a Rule 39 interim measure.

The draft guidance instructs caseworkers to “immediately refer the case for a ministerial decision on whether or not to proceed with removal” in the event of a Rule 39 measure.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.”

However, the FDA letter notes that “ministers do not employ civil servants and cannot unilaterally change or alter their terms of service”.

“The guidance is erroneous in law and gives serious uncertainty for civil servants, and would foreseeably place them in an exceptionally difficult position,” it adds.

Writing for CSW after the draft guidance was published, former Government Legal Department permanent secretary Sir Jonathan Jones noted that: "Neither the guidance nor the bill itself can alter the UK’s obligations under international law, nor cure a breach of those obligations, nor avoid the consequences of such a breach for the UK, whether in the form of legal remedies or reputational damage."

He added that the guidance "may be of limited comfort to civil servants who simply think that ignoring orders of a court to whose jurisdiction the UK subscribes, about the risk that someone may suffer irreparable harm, is an unpalatable thing to do". 

A government spokesperson said: “Matters of international law are rightly a matter for ministers. In the event that the minister decides, in the light of full policy, operational and legal advice, not to comply with a Rule 39 indication in an individual case, it is the responsibility of civil servants – operating under the civil service code – to implement that decision.”

Home Office could provide cash for voluntary 'returns' to Rwanda

As the next reading of the Rwanda bill approaches, it has also been revealed that asylum seekers could be offered thousands of pounds to relocate to Rwanda if their application is rejected.

Relocations could happen through the existing voluntary returns system, which provides up to £3,000 to enable failed asylum seekers, foreign criminals and other migrants with no right to remain in the UK to return to their home country.

The UK and Rwandan governments signed an agreement earlier this year that paves the way for people to receive financial assistance to leave the UK but not return to their home country for the first time, The Times reported.

A Home Office spokesperson said: “In the last year, 19,000 people were removed voluntarily from the UK and this is an important part of our efforts to tackle illegal migration.

“We are exploring voluntary relocations for those who have no right to be here to Rwanda, who stand ready to accept people who wish to rebuild their lives and cannot stay in the UK.

“This is in addition to our safety of Rwanda bill and treaty which, when passed, will ensure people who come to the UK illegally are removed to Rwanda.”

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