Union loses High Court battle over Rwanda scheme and Civil Service Code

A High Court judge has rejected a legal challenge brought by the FDA trade union over the Civil Service Code and potential removals of asylum seekers to Rwanda.

The removals policy was pursued by the Home Office under the previous government but Labour has since indicated it will be abandoned.

Mr Justice Chamberlain said the case concerned the legality of guidance in the code, which forms part of civil servants’ terms and conditions of employment, and includes an obligation to”comply with the law and uphold the administration of justice”.

It includes an explanation of the implications if the Government seeks to remove migrants to Rwanda, and a minister decides to proceed despite the European Court of Human Rights saying this should not happen under its ‘Rule 39’ pending the final determination of some legal procedure.

Chamberlain J noted the guidance says civil servants implementing this decision would be acting in accordance with the code, which does not permit them to refuse to implement the minister’s decision on the ground that it might be contrary to international law.

The FDA argued the guidance is wrong in law, because the obligation on civil servants to comply with ‘the law’ meant both domestic and unincorporated international law.

Ministers argued the guidance contained no error, because decisions on whether the United Kingdom should comply with unincorporated treaty obligations are constitutionally for ministers and the code must be interpreted in the light of two fundamental constitutional principles: dualism and Parliamentary sovereignty.

This meant the code cannot require civil servants to override a minister’s decision, taken lawfully as a matter of domestic law, with respect to the United Kingdom’s compliance with unincorporated international law.

Chamberlain J said that under the dualist theory of international law, in the UK this is not part of domestic law unless it has been specifically incorporated by Parliament or, through the common law where incorporation is consistent with statute.

He explained that as a matter of domestic law, a minister may decide not to comply with a Rule 39 Indication even though that would place the United Kingdom in clear violation of international law.

The judge said: “In my judgment, the same analysis applies in a case such as the present, where statute permits, rather than requires, the minister to act in violation of international law.

"In this case, the fact that Parliament has not itself determined whether the United Kingdom should comply does not mean that it has said nothing about that question. It has said that the United Kingdom’s compliance is to be decided by the minister. Parliament must have intended that a lawful decision by the minister not to comply would have effect.

“A construction of the code which precludes civil servants from implementing a lawful decision not to comply would frustrate the intention of Parliament just as surely as if Parliament itself had mandated non-compliance.”

FDA general secretary Dave Penman said of the outcome: “Whilst it is of course disappointing that the claim was denied, the judge has upheld two important principles.

“Firstly, that if a minister refused to implement a Rule 39 order from the European Court of Human Rights, this would indeed be a breach of international law. Secondly that civil servants’ statutory obligation to ‘comply with the law’ includes international law.”

Mr Penman said the FDA had taken the case to court because: “In passing the Safety of Rwanda (Asylum and Immigration) Act 2024, the government made a series of contradictory claims regarding the legislation and its compatibility with international law. The Home Secretary, the Advocate General for Scotland and the Minister of State for illegal immigration all indicated it was compatible with international obligations. At the same time, ministers sought to reassure their party that they were prepared to ignore Rule 39 orders from the ECHR.

“This contradiction is why we sought clarity through judicial review. Civil servants were faced with legal obligations to comply with the law and a deliberate attempt by government to fudge this issue due to their own internal political differences.”

Mark Smulian