Civil Service Guidance - Safety of Rwanda (Asylum and Immigration) Act
An exchange of letters between the Cabinet Office and the Home Office regarding the future implementation of the Safety of Rwanda (Asylum and Immigration) Act.
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Exchange of letters from 29 April 2024
Letter from Darren Tierney, Director General, Propriety and Constitution Group in the Cabinet Office to Sir Matthew Rycroft KCMG CBE, Permanent Secretary at the Home Office
Dear Matthew, I wrote to you on 17 January 2024, during the passage of the Safety of Rwanda (Asylum and Immigration) Bill, to provide draft guidance to the Civil Service about the implications of what was then Clause 5 of the Bill, which dealt with interim measures of the European Court of Human Rights.
The Bill has now received Royal Assent. Section 5 of the Safety of Rwanda (Asylum and Immigration) Act confirms that it is for a Minister of the Crown, and only a Minister of the Crown, to decide whether the United Kingdom will comply with an interim measure of the European Court of Human Rights.
I am therefore writing to confirm the guidance.
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. The sovereign Parliament has legislated to grant Ministers this discretion. 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 ECHR.
Accordingly, in the present context, neither the Civil Service Code, nor the broader constitutional function of the impartial Civil Service, require or enable the Civil Service to decline to implement such a decision by Ministers.
I understand that you will reflect this position in your internal guidance to officials involved in removals to Rwanda, and revised guidance to caseworkers.
Yours sincerely, Darren Tierney
Exchange of letters from 17 January 2024
Letter from Darren Tierney, Director General, Propriety and Constitution Group in the Cabinet Office to Sir Matthew Rycroft KCMG CBE, Permanent Secretary at the Home Office
Dear Matthew,
The Safety of Rwanda (Asylum and Immigration) Bill is currently making its way through Parliament. Clause 5 of the Bill deals with interim measures of the European Court of Human Rights, and makes clear that it is for a Minister of the Crown, and only a Minister of the Crown, to decide whether the United Kingdom will comply with such an interim measure. If the Bill gains Royal Assent, this provision will become domestic law.
The overall effect of the Bill will depend on whether it is amended during its passage in Parliament. If it remains in its current form following Royal Assent, and in view of the interest in this issue, guidance would be issued to civil servants to set out the implications of Clause 5 for Ministers and civil servants.
Having consulted with colleagues, I am providing below draft guidance to the Civil Service as follows:
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. Parliament has legislated to grant Ministers this discretion. The implications of such a decision in respect of the UK’s international obligations are a matter for Ministers. 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 - operating under the Civil Service Code - to implement that decision. This applies to all civil servants.
I will write again with final guidance when the Bill becomes law.
Yours sincerely, Darren Tierney
Letter from Sir Matthew Rycroft KCMG CBE, Permanent Secretary at the Home Office to Simon Case CVO, Cabinet Secretary and Head of the Civil Service
Dear Simon,
Thank you to Darren Tierney for his letter of today in which he sets out proposed guidance to be issued to the Civil Service on the duty of Civil Servants following a Rule 39 interim measure of the ECHR, where a Minister of the Crown has directed a relocation to take place pursuant to provisions in the Illegal Migration Act or the Safety of Rwanda Bill.
Amongst other things, his letter states that 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 – operating under the Civil Service Code – to implement that decision. This applies to all Civil Servants.
Acknowledging that the Bill is going through Parliament and there may be changes, I can confirm that we shall issue guidance to those involved in removals to Rwanda, and revised guidance to caseworkers. This will amend the existing Home Office guidance in relation to removals under the Illegal Migration Act and Safety of Rwanda Bill that says ‘where you have been notified that a R39 indication has been made you must defer removal immediately.’ The guidance, which may be amended as the process is developed, will state that:
“Where a Rule 39 measure is indicated by the Strasbourg Court, the Home Office case worker must immediately refer the case for a ministerial decision on whether or not to proceed with removal. This must be done without delay, irrespective of when the Strasbourg Court has issued an interim measure. Given the nature of removal flights, officials should be available to advise ministers at short notice and during evenings and weekends.
Home Office officials shall proceed with removal if the relevant Minister approves that course of action.”
Yours sincerely, Matthew Rycroft
Last updated 29 April 2024 + show all updates
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Updated on 19 April 2024 to include further letter from the Cabinet Office to the Home Office following Royal Assent for the Safety of Rwanda (Asylum and Immigration) Act
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First published.