Deportation to Rwanda may breach ECHR
Officials fear they could be forced to break Civil Service code by removing asylum seekers from UK
THE Government has admitted that removing asylum seekers to Rwanda could put the UK in breach of the European Convention on Human Rights (ECHR).
The admission that the UK could be in breach of international law has come in submissions in response to a legal challenge by the FDA union, which represents top civil servants.
Ministers have previously maintained that they would not be breaking international law if they were to ignore rule 39 orders issued by the European Court of Human Rights (ECtHR), one of which blocked the first flight to Rwanda in June 2022.
This is because they have enshrined the power for ministers to ignore rule 39 orders in legislation through Rishi Sunak’s Safety of Rwanda Act. Civil servants have been instructed in guidance that they should obey ministers but the FDA claims this would be a breach of the Civil Service code that requires officials to act in accordance with international law.
In a submission to the court, the Government has admitted that failure to comply with a rule 39 injunction could breach article 34 of the ECHR. This allows applications to the ECtHR by people who allege there have been violations of their human rights.
Article 34 says high contracting parties, which means states, including the UK, “undertake not to hinder in any way the effective exercise of this right”.
Whether it is a potential breach of international law – and so places civil servants in breach of the Civil Service code – will be determined by the High Court at a hearing at the beginning of next month. If the union is successful with its challenge, the Government could be ordered to remove the conflict between civil servants’ duty and the potential breach of international law. This could require the Government to hold a parliamentary vote to either specify in law that the UK will ignore the injunctions, or to amend the Civil Service code to remove officials’ obligations to comply with the law.
Such votes could open fresh divisions between Tory moderates, who believe it would be a step too far to enshrine a requirement to breach international law legislation, and Right-wing MPs, who would back a strengthening of the legislation. It could lead to further delays in Mr Sunak’s ambition to get the first flights off as early as June 24.
The case is being heard by Mr Justice Martin Chamberlain who disclosed the Government’s admission after receiving a letter from the Government’s lawyers setting out ministers’ position.
The lawyers argued that the FDA claim was “hypothetical” on the basis that any migrants appealing their deportation would have to exhaust all avenues in domestic courts before submitting any claim to Strasbourg judges.
Ministers believe that reforms of the rule 39 process after lobbying the court will make it harder for Strasbourg to injunct the flights for a second time.
Mr Justice Chamberlain said the lawyers had acknowledged the issue raised by the FDA would crystallise if an injunction was issued and “a ministerial decision is taken not to comply with that measure in circumstances where that constitutes a breach of article 34 of the ECHR”.
Legal experts say it is not clear if the Government is accepting that all decisions not to comply with interim measures would breach article 34.
Mr Justice Chamberlain said that “it appears from the claim that some civil servants believe, or have been advised, that it would be contrary to their terms and conditions to comply with a ministerial decision to proceed with Rwanda removals in the face of a rule 39 measure”.
He added “there is a powerful public interest in the determination of this claim in advance of the point when any rule 39 measure might be indicated”.