The government has acknowledged that removing asylum-seekers to Rwanda could put the United Kingdom in breach of the European human rights convention. Because the convention is a UK treaty obligation, non-compliance would be a breach of international law.
In the past, ministers have given the impression that ignoring so-called interim measures issued under the human rights court’s rule 39 would be lawful — at least in domestic law — because of what is now section 5 of the Safety of Rwanda (Asylum and Immigration) Act 2024.
That says, in part:
(1) This section applies where the European Court of Human Rights indicates an interim measure in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of, or made under, the Immigration Acts.
(2) It is for a Minister of the Crown (and only a Minister of the Crown) to decide whether the United Kingdom will comply with the interim measure.
(3) Accordingly, a court or tribunal must not have regard to the interim measure when considering any application or appeal which relates to a decision to remove the person to the Republic of Rwanda under a provision of, or made under, the Immigration Acts.
Asked during the bill’s second reading debate last December whether it would be compatible with international law for a minister to refuse to comply with interim measures in these circumstances, the home secretary James Cleverly said “the government’s position is clear and unambiguous that this is in accordance with international law”.
Now, though, the government has admitted that failure to comply with an interim measure could breach article 34 of the human rights convention. This provision permits individual applications to the court by people who allege violations of their human rights. Article 34 goes on to acknowledge that the high contracting parties — which means states, including the United Kingdom — “undertake not to hinder in any way the effective exercise of this right”.
The government’s admission that ignoring interim measures could hinder access to the Strasbourg court is recorded in an order made by Mr Justice Chamberlain in the High Court last Friday. He had received a letter dated 2 May from the government legal department on behalf of three government ministers. The letter was sent in response to a claim about removals lodged by the FDA, a trade union representing senior managers and professionals in public service.
Quoting the ministers’ position from their lawyers’ letter, Chamberlain observed:
They say that “the earliest a removal is expected to take place is 1 to 15 July” and submit that the issue raised by the claim is hypothetical and will crystallise “only if an interim measure is indicated by the European Court of Human Rights and a ministerial decision is taken not to comply with that measure in circumstances where that constitutes a breach of article 34 of the European Convention on Human Rights”.
It’s not clear whether the government is accepting that all — or just some —decisions not to comply with interim measures would breach article 34.
The FDA claim
The civil service union applied for permission to seek judicial review of guidance issued to civil servants by a Cabinet Office official in a letter dated 29 April. Darren Tierney told the Home Office permanent secretary:
As a matter of UK law, the decision as to whether to comply with a rule 39 indication is a decision for a minister of the crown…
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.
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.
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 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 of the European Convention on Human Rights.
The FDA, represented by Tom Hickman KC, argues that this guidance is wrong in law and that civil servants would be acting contrary to the code and therefore against their terms and conditions of employment if they acted contrary to such an interim measure.
Dave Penman, the union’s general secretary, said:
The civil service code is not merely a professional code. It is backed by statute and therefore confers on civil servants a legal obligation to follow it. Neither ministers nor guidance can overrule that.
Lawyers for the FDA asked the court for a hearing during the week beginning 28 May. The government said it should be during the week beginning 10 June.
Chamberlain’s decision
Chamberlain, recently promoted to judge in charge of the Administrative Court list, decided that the one-day hearing would take place between 4 and 7 June. Both sides had agreed it should be a “rolled-up hearing” at which the court would consider the merits of the claim as well as whether to grant permission.
Commendably, the judge ensured that his order was promptly published.
Comment
The government argued that this claim was hypothetical. At the very least, we might regard it as premature because it is based based on a series of assumptions:
migrants are selected for removal to Rwanda;
they bring challenges in the courts of England and Wales that are dismissed;
they lose all appeals;
they persuade the human rights court to grant interim measures;
the minister decides not to comply with these measures and orders officials to put the removals into effect.
You might have thought it would be only at this stage that the courts would get involved. But Chamberlain is well aware that a rushed decision may turn out to be a bad one.
He said:
It would not be right to say anything about the merits of the claim at this stage. However, 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.
The prospect that they will be asked to act contrary to a rule 39 measure, whilst far from certain, is also not hypothetical, given the government’s public statements on this subject.
That being so, 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. Time for the court to consider and hand down a judgment, and for the parties to consider and if necessary act on it, must also be factored in.
The judge concluded that a hearing between 4 June and 7 June would give all parties enough time to present their arguments on what he said was essentially a question of law.
Update 0840: In the House of Lords on 6 March, Lord Stewart of Dirleton KC, for the government, responded to a question on this issue from Lord Anderson of Ipswich KC.
Anderson had asked the minister whether the government agreed that if, in compliance with what was then clause 5, a minister decided not to comply with an interim measure, that would place the United Kingdom in breach of its international obligations.
The minister replied:
Clause 5 provides that it is for a minister only to decide whether the United Kingdom will comply with an interim measure indicated by the European Court of Human Rights in proceedings relating to the intended removal of a person to the Republic of Rwanda under, or purportedly under, a provision of or made under the Immigration Acts.
The bill is in line with international law. The government take their international obligations, including under the European Convention on Human Rights, very seriously and there is nothing in the clause that requires the United Kingdom to breach its international obligations.
In any event, it is not correct that a failure to comply with interim measures automatically involves a breach of international law. There are circumstances where non-compliance with an interim measure is not in breach of international law.
What were those circumstances, Anderson wanted to know.
“It would be in circumstances where compliance is not possible,” Stewart replied.
Anderson pressed his point:
Is the minister accepting that in circumstances where the Strasbourg court has made an order and it is possible for the United Kingdom to comply with that order, then the United Kingdom will be in breach of its obligations if the minister decides not to comply with it?
Stewart replied:
As I said, the bill is in line with international law. It is not correct that a failure to comply with interim measures automatically involves a breach of international law… There is nothing in this clause that requires the government to act in breach of international law.
He was pressed further by Lord Falconer of Thornton, the former lord chancellor:
Can we then take it from what the minister has said that, if the government… take the view that not to comply with a rule 39 order would in the circumstances then prevailing put the government in breach of international law, the government would then comply with that order?
Stewart replied:
The point is that rule 39 interim measures are not final judgments of the European Court of Human Rights, which do bind the United Kingdom. They are not binding on the United Kingdom domestic courts.
When deciding whether to comply with an interim measure indicated by the Strasbourg court, due consideration will be given to the facts in the individual case and careful consideration of the United Kingdom’s international obligations.
So now we know.
Update 10 May: the government now say that the earliest possible date for removals is 24 June. But Chamberlain has refused a request by the FDA to hold the hearing any sooner.
From the Courts and Tribunals Judiciary website:
"May 7, 2024
Judge of the First-tier Tribunal, Immigration and Asylum Chamber Appointment: Dieu
Appointment
First-Tier Tribunal Judge
Immigration and Asylum Chamber (First-Tier)
The Senior President of Tribunals has appointed Hoa Dieu to be a Judge of the First-tier Tribunal, Immigration and Asylum Chamber with effect from 1 August 2024.
Background Information
Hoa Dieu will be known as Judge Dieu. He was called to the Bar (Gray’s Inn) in 2006. He was appointed as a Fee-paid Employment Judge in 2021, and as a Fee-paid Judge of the First-tier Tribunal, Immigration and Asylum Chamber in 2021."
Will asylum-seeker appellants, seeking to challenge removal directions to Rwanda, ask for their cases to be heard by Judge Dieu on the basis that the Safety of Rwanda (Asylum and Immigration) Act 2024 doesn't, or doesn't purport to, prevent God considering whether Rwanda is a safe country?!