FDA, R (on the application of) v Minister for the Cabinet Office & Anor

5 July 2024

[2024] EWHC 1729 (Admin)

High Court

The government wanted to send migrants to Rwanda, even if an international court said not to. A law was passed saying the government gets to decide. The court said this is legal, and civil servants have to follow the government's orders, even if it breaks international rules.

Key Facts

•The FDA challenged guidance from the Cabinet Office on civil servants' obligations under the Civil Service Code regarding compliance with a European Court of Human Rights (ECtHR) Rule 39 Indication against the Rwanda migrant removal policy.
•The Guidance stated civil servants must implement a Minister's decision to proceed with removals despite a Rule 39 Indication.
•The 2024 Act granted Ministers sole discretion on compliance with Rule 39 Indications.
•The FDA argued the Code requires compliance with both domestic and unincorporated international law, including ECtHR Rule 39 Indications.
•The Defendants argued the Code must be interpreted in light of dualism and Parliamentary sovereignty; Ministers alone decide on compliance with unincorporated international law.

Legal Principles

Effect of ECtHR Rule 39 Indications

Mamatkulov v Turkey, Paladi v Moldova, OM and DS v Ukraine

Dualist theory of international law in UK

JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry, R (Miller) v Secretary of State for Exiting the European Union, R (SC) v Secretary of State for Work and Pensions

Status of Article 34 ECHR obligation in domestic law

Human Rights Act 1998

Ministerial Code and international law

R (FDA) v Prime Minister, R (Gulf Centre for Human Rights) v Prime Minister

Constitutional role of civil servants

Constitutional Reform and Governance Act 2010, Carltona Ltd v Commissioners of Works

Statutory interpretation

R (Westminster City Council) v National Asylum Support Service, R (O) v Secretary of State for the Home Department, Pepper v Hart, Presidential Insurance Co Ltd v St Hill, Williams v Central Bank of Nigeria

Interpretation of Civil Service Code

R (Bloomsbury Institute Ltd) v Office for Students, Federal Republic of Nigeria v JP Morgan Chase Bank NA, Hartlepool Borough Council v Llewellyn

Judicial review of Government policy and guidance

R (A) v Secretary of State for the Home Department, R (Equality and Human Rights Commission) v Prime Minister

Outcomes

Permission for judicial review granted, but claim dismissed.

The court found that the 2024 Act granted Ministers the sole discretion to decide whether to comply with ECtHR Rule 39 Indications, even if non-compliance violated international law. The Civil Service Code, correctly interpreted, requires civil servants to implement lawful Ministerial decisions, even those violating international law. The Guidance accurately reflects this.

FDA, R (on the application of) v Minister for the Cabinet Office & Anor

Key Facts

Legal Principles

Outcomes

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