Civil servants have been told they must disregard European Court of Human Rights rulings blocking deportation flights to Rwanda if a minister instructs them to do so, as fresh legislation comes into effect.
In a letter to Home Office permanent secretary Sir Matthew Rycroft, Cabinet Office ethics chief Darren Tierney said civil servants will be expected to operate “in accordance with the civil service code” on asylum cases under the Rwanda policy, “including the obligation not to frustrate the implementation of policies once decisions are taken”.
Ministers have been grappling with delays and barriers to the Rwanda scheme, which will see asylum seekers sent to the East African country for "processing" and resettlement, since it was announced in April 2022. The first flight due to carry proposed deportees was grounded in June that year following a last-minute ruling by an ECHR judge.
In his letter, Tierney confirmed that draft guidance issued in January to circumvent ECHR intervention is now in effect, after the Safety of Rwanda (Asylum and Immigration) Act passed into law last week.
The guidance says ministers’ instructions should override a Rule 39 interim measure of the ECHR – often referred to as “pyjama injunctions” as they can be issued late at night – to block a deportation. It tells civil servants to “immediately refer the case for a ministerial decision on whether or not to proceed with removal” in the event of such a 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.”
In his letter to Rycroft yesterday, Tierney said that under UK law, it is up to ministers to decide whether to comply with a Rule 39 indication.
“The sovereign parliament has legislated to grant ministers this discretion. 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 to implement that decision. This applies to all civil servants,” he said.
“The implications of such a decision in respect of the UK’s international obligations are a matter for ministers, exercising the discretion which has been granted to them by parliament,” he added.
In issuing the guidance, 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.
However, the guidance has generated controversy since it was issued in January, with the FDA union saying it “may require legal proceedings” to clarify matters.
Writing for CSW in March, FDA general secretary Dave Penman said: "Ministers want to break the law; civil servants have a legal duty to uphold it. This is no accidental conflict. The legislation in the Rwanda bill is deliberately vague."
He said the then-Rwanda safety bill would leave civil servants facing "the dilemma that the ministerial code specifically says they shouldn’t – a conflict between the instructions of ministers and their obligations under the civil service code".
In his letter, Tierney said that in implementing a minister’s decision, “civil servants would be operating in accordance with the civil service code”.
“They would be operating in compliance with the law, which is the law enacted by parliament under which the minister’s specifically recognised and confirmed discretion would be exercised,” he said.
“The code does not require or enable civil servants to decide not to do so, and so to frustrate the will of parliament and ministers, on the basis that non-compliance with a Rule 39 indication would or might be a breach of Article 34 ECHR.”
“Accordingly, in the present context, neither the civil service code, nor the broader constitutional function of the impartial civil service, require or enable the civil service to decline to implement such a decision by ministers.”
The guidance comes days after former justice secretary Sir Robert Buckland said it was “very unlikely” that European courts could use an injunction again to stop asylum seekers being deported to Rwanda now that the relevant legislation has been passed.
He told CSW's sister title PoliticsHome that since the ECHR blocked the first deportation flight, the court had "already reformed its procedures to to raise the threshold before which such an injunction can be granted".
"I'd be very surprised and concerned if it was, frankly.”
Writing for CSW earlier this year, former Government Legal Department permanent secretary Sir Jonathan Jones said it was “pretty extraordinary that such guidance is thought necessary in the first place”.
“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 wrote.
“And 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.”