FDA -v- Secretary of State for the Cabinet Office and another
Case number: AC-2024-LON-001503
In the High Court of Justice
King’s Bench Division
Administrative Court
3 May 2024
Before:
The Hon. Mr Justice Chamberlain
Between:
The King on the application of
FDA
-v-
Secretary of State for the Cabinet Office
Minister for the Civil Service
and
Secretary of State for the Home Department
(Interested party)
Order
Notification of the Judge’s decision on the application for permission to apply for judicial review (CPR 54.11, 54.12)
Following consideration of the documents lodged by the claimant, the letter of 2 May 2024 from the Government Legal Department on behalf of the defendants and interested party and the letter of 3 May 2024 on behalf of the claimant
ORDER by the Hon. Mr Justice Chamberlain:
1. The application for permission to apply for judicial review is adjourned to be listed in court as a rolled-up hearing, on notice to the defendant and interested party. If permission to apply for judicial review is granted at that hearing, the Court will proceed immediately to determine the substantive claim.
2. The rolled-up hearing will be listed between 4 and 7 June 2024. Counsels’ availability will be taken into account, but the case must be listed within this window.
3. The time estimate is 1 day.
4. The hearing will take place at the Royal Courts of Justice, London.
5. Case management directions:
a. The claimant must, by 10am on 10 May 2024, file an undertaking to pay the continuation fee (see below) if permission to apply for Judicial Review is granted.
b. The defendant and interested party must serve detailed grounds and any written evidence by 10am on 20 May 2024.
c. Any application by the claimant to serve evidence in reply must be filed and served, with the proposed evidence attached, by 4pm on 24 May 2024.
d. The claimant must also file and serve a skeleton argument by 4pm on 24 May 2024.
e. The defendants and interested party must file and serve a skeleton argument by 4pm on 30 May 2024.
f. The parties must agree the contents of the hearing bundle and must file it with the Court by 4pm on 30 May 2024. An electronic version of the bundle must be prepared and lodged in accordance with the Guidance on the Administrative Court website. The parties must, if requested by the Court, lodge 3 hard-copy versions of the hearing bundle.
g. The parties must agree the contents of a bundle containing the authorities to be referred to at the hearing. An electronic version of the bundle must be prepared in accordance with the Guidance on the Administrative Court website. The parties must, if requested by the Court, prepare 3 hard-copy versions of the authorities bundle. The electronic version of the bundle and, if requested, the hard copy version of the bundle, must be lodged with the Court by 4pm on 31 May 2024.
h. CPR 2.11 does not apply to these proceedings. Accordingly, the parties may not vary any time limit imposed by this order.
6. The parties have liberty to apply to vary these directions, and this Order generally, but very good reason will have to be shown to justify any variation. Any application is to be referred to Chamberlain J.
Observations
The claimant is one of the principal civil service unions. The decision challenged is guidance given on 29 April 2024 by the Cabinet Office to civil servants (the Guidance) about their legal responsibilities in relation to the implementation of removals to Rwanda, following the enactment of the Safety of Rwanda (Asylum and Immigration) Act 2024 (the Act). The guidance tells civil servants that they will be acting in accordance with the Civil Service Code (the Code) if they implement any Ministerial decision to remove asylum seekers to Rwanda, even in the face of an interim measure from the European Court of Human Rights (Strasbourg) under rule 39 of its Rules of Court. The claimant says that this guidance is wrong in law and that civil servants would be acting contrary to the Code, as presently drafted, and therefore contrary to their terms and conditions of employment, if they acted contrary to such an interim measure.
The claimant asks for directions leading to a 1 day rolled up hearing in w/c 28 May. The defendants do not oppose the proposal that the case is dealt with on a rolled-up basis, but want a timetable leading to a hearing in w/c 10 June. 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 crystalise “only if an interim measure is indicated by the ECtHR and a Ministerial decision is taken not to comply with that measure in circumstances where that constitutes a breach of Article 34 ECHR”.
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 defendants and interested party should not need as long as they have sought to file their detailed grounds, given that they have been on notice that a challenge on this issue was likely since March 2024. On the other hand, given the defendant’s clear indication of the earliest date when removals will begin, the challenge is not so urgent as to require a hearing on the timetable suggested by the claimant.
The hearing window and directions set out in the directions I have given allow all parties a reasonable opportunity to prepare and present their case on what is essentially a question of law. Very good reason will have to be shown for varying either the hearing window or any of the case management directions.