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Rwanda: Civil servants mount court challenge over new law

By Dominic Casciani

Home and legal correspondent

May 3, 2024

Credits @FFHR.CZ

The union for senior civil servants is launching an unprecedented legal challenge to ministers' Rwanda plan.

The FDA said it was intervening because it feared the scheme to send some asylum seekers to Rwanda could force officials to break the law.

Under a new law, ministers can ignore the European Court of Human Rights and direct officials to organise flights.

The union wants the High Court to rule on whether that element would put civil servants in a difficult legal position.

The FDA fears civil servants could be stuck between judges and ministers and that a direction to breach international law, would put them in conflict with the Civil Service Code.

The government said advice from Darren Tierney, its head of propriety and ethics, says the code would not be breached.

In a letter published on the government's website, Mr Tierney wrote: "In implementing the decision, civil servants would be operating in accordance with the Civil Service Code, including the obligation not to frustrate the implementation of policies once decisions are taken.

"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."

The Rwanda plan is the key part of Prime Minister Rishi Sunak's pledge to stop migrants from crossing the English Channel in dangerous dinghies.

The Safety of Rwanda legislation overrules last November's Supreme Court decision which said that the country was not a safe place to send genuine refugees because they could be returned from there to their home countries and subjected to torture and abuse.

It also limits what kind of legal challenges they can present to the courts and, crucially, says ministers could choose to ignore a temporary order from the European Court of Human Rights to halt flights while a case is still being considered.

In practice, that would see ministers ordering key civil service leaders to prepare and send off flights, even if judges have said the case has not been settled.

The First Division Association (FDA), which represents those Whitehall leaders, said that measure means members fear they could be ordered to break both international law and the Civil Service Code, their legally-underpinned rule book.

Dave Penman, the FDA's general secretary, said its members were not taking a political view on whether the Rwanda plan was right or wrong - but they needed certainty about whether the measure places them in a conflict between ministers and the law.

"This [measure] is not an accident or down to poor drafting," he said.

"It's a political choice from the government, made not for the good of the country but to avoid upsetting either of the warring factions within its own party."

"It's also irresponsible. Civil servants know that they have to support the government of the day and implement policy, regardless of their political beliefs, but they also know they have a legal obligation to adhere to the Civil Service Code.

"Faced with a government that is prepared to act in this cowardly, reckless way, it is left to the FDA to defend our members and the integrity of the civil service."

'Nationwide operations'

The FDA will now ask the High Court to prioritise its case - but there is no guarantee that judges will do so.

But if the case goes to a full hearing - even though no departure dates have yet been set - it could temporarily paralyse the policy.

In a worst case scenario, judges could rule that the government has created an unlawful conflict that then prevents top civil servants from implementing the plan.

Earlier on Wednesday, the Home Office confirmed "a series of nationwide operations" was under way to detain people across the country ahead of their removal to Rwanda.

Photographs and a video were released of immigration enforcement officers detaining several migrants at different residences, before they were led away in handcuffs and put into secure vehicles.

Each person being considered for forcible removal to Rwanda must be given at least seven days' written notice of that intention and they have the right to launch a legal challenge.

The government had previously said it was aiming for flights to take off by the spring but now says this should happen in nine to 11 weeks.

Labour has said it would scrap the Rwanda scheme if it wins the next election.

However, asked several times whether the party would release those detained as part of the policy, Labour's deputy nation campaign coordinator Ellie Reeves would not say.

"We want to get people back to their own countries if their claims have failed which is why we would set up those return agreements and also recruit a thousand case workers," she told BBC Radio 4's World at One programme.

Labour have said they would allow those who have arrived on small boats to apply for asylum, something current arrivals are barred from doing.

The party added that no flights to Rwanda carrying asylum seekers would be scheduled by a Labour government.

But this does mean any already scheduled before the election, for departure afterwards, could still leave.

The precise nature of how Labour plan to handle the small boats issue is now the subject of considerable scrutiny, with the general election drawing closer and the legal framework it would inherit if it wins much clearer than it was.

'Great anxiety'

On Monday it emerged that most of the asylum seekers initially earmarked for deportation to Rwanda could not be immediately located.

Home Office documents show 5,700 asylum seekers have been identified in the initial cohort to be sent to Rwanda, but only "2,143 continue to report to the Home Office and can be located for detention".

No 10 said it was "not accurate" to say the Home Office was unable to locate the others, but a government source admitted it was possible some could abscond before they were detained.

The Home Office said it had increased detention capacity to more than 2,200 spaces and had 500 highly-trained escorts ready.

The department said commercial charters had also been booked and an airport had been put on standby.

Enver Solomon, chief executive of the Refugee Council, said: "The government's move to detain people is causing fear, distress and great anxiety amongst men, women and children who have fled war and persecution to reach safety in the UK."

He said the government should focus on processing asylum claims "efficiently and fairly", rather than "headline-grabbing schemes that will waste time and resources".

'Pre-election gimmick'

It comes as figures showed 268 people arrived in the UK across the English Channel in five boats on Tuesday.

A total of 7,567 people made the journey from January to April, provisional Home Office figures show.

The figure is 27% higher than the number of arrivals recorded in the same period last year.

Meanwhile, a first failed asylum seeker has gone to Rwanda under a separate voluntary removals programme.

Under the scheme, announced in March, migrants whose claims are rejected are offered up to £3,000 to move to the east African country.

The Sun, which first reported the story, said the unnamed man was flown out of the UK on Monday on a commercial flight.

Shadow home secretary Yvette Cooper called news of the voluntary return a "pre-election gimmick," adding taxpayers were "forking out £3,000 for a volunteer to board a plane".

Liberal Democrat leader Sir Ed Davey said: "They've had to pay someone £3,000. There's a suspicion out there that this is about an election - it's not about seriously stopping the boats."

Additional reporting by Jennifer McKiernan and Becky Morton



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