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

A Rule 39 indication is binding on the United Kingdom in international law. Deliberate non-compliance in the stated Rwanda-removal scenario would clearly breach Article 34 ECHR. In domestic law, however, unincorporated international obligations operate separately from domestic law. Parliament may therefore confer on a Minister a domestic-law discretion not to comply.

The Civil Service Code’s reference to “the law” ordinarily includes domestic and international law. That obligation must nevertheless be interpreted consistently with constitutional rules governing conflicts between them. Where section 5(2) of the Safety of Rwanda (Immigration and Asylum) Act 2024 permits a Minister lawfully to decide not to comply with a Rule 39 indication, civil servants must implement that decision. The Guidance was therefore lawful.

The FDA, a civil service union, challenged Cabinet Office guidance concerning civil servants’ duties if the Strasbourg Court issued a Rule 39 indication against removing a person to Rwanda and a Minister nevertheless decided to proceed.

The claimant argued that the Civil Service Code required civil servants to comply with international law, including Article 34 ECHR, and therefore to refuse implementation. The defendants relied on constitutional dualism, ministerial responsibility and section 5(2) of the Safety of Rwanda (Immigration and Asylum) Act 2024, which provides that only a Minister may decide whether the United Kingdom will comply with such an indication. The central questions were the international and domestic legal effects of non-compliance, the meaning of “the law” in the Code, and whether the Guidance was unlawful or insufficiently clear.

1. International-law effect. The Strasbourg Court’s established jurisprudence, including Mamatkulov and Paladi, makes Rule 39 indications binding under Article 34 ECHR. In the Guidance scenario, a Minister’s deliberate decision not to comply would clearly violate Article 34. The objective-impediment qualification discussed in Paladi applies where a State seeks to comply but cannot, not where it deliberately chooses non-compliance.
2. Domestic-law effect. Under the United Kingdom’s dualist constitution, Article 34 is unincorporated international law. A decision that clearly breaches an international obligation may therefore be contrary to international law without being, for that reason alone, contrary to domestic law.
3. Civil servants’ constitutional position. Ministers determine Government policy and civil servants advise and implement it. Civil servants must refuse instructions clearly contrary to domestic law, including instructions unlawful as a matter of domestic public law. There is no equivalent constitutional rule requiring refusal solely because an instruction breaches international law.
4. Section 5(2). Read in context, section 5(2) gives a Minister, and only a Minister, the choice whether the United Kingdom will comply with a Rule 39 indication. It contains no qualification limiting non-compliance to cases compatible with international law. That construction could not be displaced by the presumption that legislation should be interpreted consistently with international obligations, because Parliament had plainly legislated.
5. Meaning of the Code. The Code is interpreted according to public-law principles applicable to a statutory code or policy document, while taking account of its contractual effect and constitutional context. “The law” generally includes domestic and international law. In the special case where domestic law permits a Minister to act contrary to international law, however, compliance with “the law” includes compliance with the domestic constitutional rules governing that conflict. Civil servants must therefore implement a domestically lawful ministerial decision under section 5(2).
6. Clarity and outcome. The Code is a high-level document and does not purport to address every circumstance. The Guidance correctly stated its effect in the relevant scenario. Permission was granted, but the claim for judicial review was dismissed.

First-instance judicial review in the High Court (Administrative Court). No prior appellate decision was stated in the judgment.