General election 2024: How has calling the election affected the Rwanda policy?

Despite the agreement being signed in 2022 the government has been unable to implement the policy – save for a very small number of voluntary returns agreements – due to various logistical and legal challenges. This culminated in the UK Supreme Court’s November 2023 judgement that the policy was unlawful due to the risk that asylum seekers could be ‘refouled’ (forcibly returned to a country where they could face persecution) after being sent to Rwanda. 

The government’s response has been the Safety of Rwanda Act, which received royal assent in April this year, and through which parliament asserted that Rwanda is a safe ‘third country’ to which asylum seekers could be sent. 

Since then, the Home Office has been preparing to send the first flights of asylum seekers to Rwanda. Until the general election was announced, this was expected to happen in late June or July – though the government still faces further logistical and legal challenges, including potential appeals to the European Court of Human Rights on the grounds that the policy contravenes the UK’s obligations under the European Convention on Human Rights. 

What has Rishi Sunak said about when the first flights will take off? 

After the prime minister announced that the general election would take place on 4 July 2024, there was speculation as to whether the government would try – or be able – to enact the policy by chartering flights before polling day. But Rishi Sunak has since said that the first flights would not take place until “after the election”, using this timing to argue that “that’s the choice at this election”. ⁶ https://www.bbc.co.uk/news/uk-politics-69052507  

Do pre-election restrictions prevent the government from sending flights? 

During each election campaign there are restrictions in place on what the civil service can and cannot do to support ministers in initiating policy and using official resources. These restrictions arise from the need to maintain “the impartiality of the Civil Service, and to avoid any criticism of an inappropriate use of official resources”. For the 2024 general election they are set out in pre-election guidance to civil servants that was published on Thursday 23 May 2024. 

This has raised the question of whether, if the government did try to enact the Rwanda policy with a first flight of asylum seekers to Rwanda before polling day, that guidance would prevent the Home Office from doing so, or whether civil servants might have advised ministers that such efforts were contrary to the guidance.  

Could the Home Office organise a flight without contradicting the guidance?

The guidance includes two key principles that would bear on whether the Home Office could send a flight to Rwanda during the election period – on how ministers make decisions and how they initiate policy. 

The guidance says that ministers should not make decisions “on matters of policy on which a new government might be expected to want the opportunity to take a different view”. This would not prevent the government from organising a flight because the decision to send people to Rwanda through this policy has already been taken through a series of policy and legislative steps over the past two years. 

More complicated, and ambiguous, is the principle that: 

“It is customary for Ministers to observe discretion in initiating any new action of a continuing or long term character”. 

Sending a first flight of asylum seekers to Rwanda could be understood as “initiating any new action”, because the government was unable to send any flights before the election period. But it could also be argued that civil servants would be implementing an already agreed policy and so not constitute a new action. 

This principle also depends on the interpretation of what is meant by a “continuing or long term character”. One the one hand, the government can only send an individual to Rwanda for the first time once. So doing so would prevent a new government from making that choice. It could therefore be seen as an action that has “continuing” implications. It also, of course, has major and continuing consequences for the individual concerned. On the other hand, sending a flight to Rwanda would not prevent a new government from immediately cancelling the policy and deciding not to send any further flights.  

This means that there is plausible ambiguity over whether or not a flight would constitute a breach of this guidance. 

If a flight did take place, could the government communicate that fact?

The guidance on communication during the pre-election period is less ambiguous as regards the Rwanda policy. Official resources, including civil servants themselves, can be used to undertake normal communication only “to the extent of providing factual explanation of current government policy, statements and decisions”. The guidance also states that departments should not “compete with the election campaign for public attention” or become involved “in a partisan way”. 

This means that any press release or video showing or describing a flight taking place would go beyond factual explanation of policy, constitute a clear intervention in the campaign on a major issue of contention and be a breach of the guidance. This would include, for example, a social media video such as the one published earlier in May to show migrants being detained ahead of their potential removal to Rwanda. ⁸ https://www.itv.com/watch/news/home-office-carries-out-raids-on-asylum-seekers-ahead-of-rwanda-deportation/mrfmwvf  

As a result politicians, including Home Office ministers, could campaign on the flight having happened using party or their own personal channels, but would be unable to use any official resources – including photos, videos or editorial content – to do so. 

What happens if the government ignores the guidance? 

The Propriety and Ethics Team in the Cabinet Office advises ministers on all matters relating to the guidance and answer queries from across government throughout the pre-election period. But this guidance is “customary” and it is up to ministers and ultimately the prime minister to decide how to use official resources in line with these restrictions. 

Individual breaches of these rules by civil servants are dealt with as a personnel matter. The ministerial code requires ministers to respect the impartiality of the civil service, and so ignoring the pre-election restrictions would on the face of it be a breach of the code. But it is for the prime minister to determine whether a minister has broken the code, and what sanctions if any to apply.