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FDA union begins legal challenge over Safety of Rwanda Act as it conflicts with civil servants’ duty to act lawfully


Union which represents senior civil servants submits judicial review application

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The FDA union, which represents senior civil servants and public service professionals, has announced today that it is has begun a legal challenge over the Safety of Rwanda (Asylum and Immigration) Act.

Border signImage credit: UK GovernmentIn a judicial review application submitted today, the FDA argues that the Rwanda Act will allow international law to be breached and this conflicts with the duty of civil servants under the Civil Service Code to act in compliance with the law, including international law.

As Politico reported in January, the Government has told civil servants that, if a minister tells them to, they must ignore Rule 39 orders from the European Court of Human Rights. A Rule 39 order issued by Court prevented the first deportation flight to Rwanda in June 2022.

Announcing the FDA's legal action today, General Secretary Dave Penman stated: "This is not a decision that the FDA's Executive Committee has taken lightly, nor welcomes. In March we wrote to the Home Secretary and Minister for the Cabinet Office, outlining our concerns regarding the provisions in the then-Bill, which indicated ministers may have discretion to ignore Rule 39 orders from the European Court of Human Rights. These are provisional orders, similar to an interim injunction from a UK court, and would potentially be issued to prevent the deportation of an asylum seeker, before the final decision is taken by the court.

"Ignoring a Rule 39 order would be a breach of international law and civil servants have a legal obligation under the Civil Service Code to 'uphold the rule of law and administration of justice'. We have been able to establish that whilst the current version of the Code does not make specific reference to international law, the original version, introduced in 1996, did. When it was updated in 2006 to simplify it, the government confirmed as part of the consultation on that revision, that the obligations on international law remain.

"The Civil Service Code is not merely a professional code, it is backed by statute and therefore conveys on civil servants a legal obligation to follow it. Neither Ministers nor guidance can overrule that, only another act of parliament can. There is therefore a potential conflict between the instructions of a minister and the legal obligations under the Code, if a minister was to decide to ignore a Rule 39 order."

Penman said that it was irresponsible and reckless for the Government to act in this way, as ministers have an obligation under the Ministerial Code to "uphold the political impartiality of the civil service, and not ask civil servants to act in a way which would conflict with the Civil Service Code".

Penman added: "Our only option therefore is to ask for a court to decide on this issue. In doing so, we want to do everything we can to resolve this before a civil servant is potentially placed in this invidious position by a minister and we have sought to act as quickly as practicable after the bill received Royal Assent."