Senior Home Office civil servants have warned Downing Street that plans for an emergency law to revive the Rwanda policy will fail, prompting a fresh clash with ministers that is delaying the policy.
One senior official working on plans to prevent the courts hearing future legal challenges against the Rwanda policy described the legislation as a “political gimmick”. They added: “The government can’t legislate its way out of the Supreme Court judgement.”
Government lawyers working on the emergency legislation are also refusing to approve the most hardline version that would opt out of the European Convention on Human Rights (ECHR), The Times has been told.
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They are said to be “very, very reluctant” because it would breach the civil service code, which dictates that officials must not back an approach that does not comply with international law.
However, ministers are becoming increasingly frustrated with “foot-dragging” by officials that some in government now see as political resistance to the Rwanda policy.
Attempts to overcome such objections and ensure the policy is “watertight” mean legislation designed to force it through may now slip into next week, although ministers have not given up hope of publishing it this week.
On Sunday Victoria Prentis, the attorney general, Robert Jenrick, the immigration minister and officials in Number 10 were locked in meetings all day to go through each option for the legislation. Jenrick is pushing for the hardest option and is said to be hopeful of persuading the prime minister to back his approach.
A new treaty with Rwanda could come sooner, as James Cleverly, the home secretary, is on standby to fly to Kigali to sign it as early as Tuesday.
The text of the treaty will include a legal guarantee that Rwanda will not deport any migrants who are relocated under the scheme. Victoria Atkins, the health secretary, refused to say whether an extra £15 million being paid to Rwanda for signing the new treaty represented value for money.
Separate legislation is being drawn up to prevent further legal challenges against the policy, but it has been delayed due to internal government disagreements over what it should contain and may only be ready to be introduced to parliament next week.
Rishi Sunak has still not decided whether to opt for the most hardline option, which would include a “notwithstanding” clause in the legislation to direct British courts to ignore the ECHR on asylum cases.
A less controversial option would disapply the UK Human Rights Act on asylum claims and the least controversial option would simply state Rwanda is a “safe country”.
A senior Home Office source said officials have warned Sunak that even the most hardline option would fail to address the court’s concerns that Rwanda is unsafe for asylum seekers.
They said that Home Office officials had warned from an early stage that the Rwandan asylum system is not good enough.
“Number 10 is very gungho but they’re trying to push this through for political reasons and they don’t know what they’re doing legally. Legislating to say Rwanda is safe doesn’t mean it is true … It’s all gimmicks.”
Another official warned that no legislation can take away the right for an individual to challenge their deportation on the basis that Rwanda is unsafe for them on specific personal grounds.
The Home Office insider said: “It’s all a political stunt. They’re just trying to get through each week and show that they’re doing something. But it won’t get flights in the air. Everyone’s time is being wasted, people know it’s not going to work. We should have been planning an alternative but Number 10 assumed we were going to win in the Supreme Court.”
However, senior government figures see such attitudes as a sign that some officials “just don’t like” the policy and are throwing up objections.
A government source insisted that Sunak was fully committed to making the plan work, saying: “He will absolutely grip this and make sure this is watertight and there can be no further delays. We will get this done.”
Government lawyers in the Home Office and the Attorney General’s Office are pushing back against the hardline option of disapplying the ECHR because it would breach the civil service code.
A government source said: “They are very very reluctant. they’re saying this is against the civil service code, that you have to abide by international law. They were always quite worried about that. They’re part of the wider legal community — they’re not going to push their future careers under the bus. There’s a lot of pushback from the government legal department.”
A source from the Attorney-General’s Office added: “The job of GLD [Government Legal Department] has always been to assist the government of the day in achieving its policy objectives in a way that is both effective and lawful. Most GLD lawyers are brilliant civil servants who take that responsibility very seriously— many working round the clock to get this over the line.”
There were even claims from one source in government that the Bar Council had threatened to remove the Attorney-General’s Office of its traditional role as the head of the Bar Council if the legislation included clauses that disapplied parts of the ECHR.
However, this is believed to be highly unlikely given it would require a change in its constitution and the role is only a symbolic one.
Sir Robert Buckland, a former justice secretary and current chairman of parliament’s Northern Ireland committee, said any move to abandon or ignore the ECHR would be “foolish and rash” as it would endanger the Good Friday agreement.
The Home Office is compiling an “evidence pack” that will be presented alongside the new treaty to show the progress that has been made by the Rwandans, along with help from UK officials, to bolster its asylum and appeal system. Dan Hobbs, director general for migration and borders in the Home Office, is currently in Kigali with a team of officials putting the finishing touches to the new treaty.
Saturday saw one of the highest number of migrant crossings of the Channel this year with 519 people in 11 boats, despite temperatures being below freezing. The large numbers contradict claims by Cleverly that the Rwanda policy was already having a deterrent effect.
A total of 14,901 migrants have arrived in the UK in small boats since the Illegal Migration Act came into effect in July, which bars them from claiming asylum.
Last week Home Office officials admitted they did not know the whereabouts of more than 17,000 migrants whose claims for asylum had been withdrawn by the government.
Research by the Refugee Council and 40 frontline organisations suggests that many of those falling off the grid are doing so out of fear of removal to Rwanda. One organisation reported that it had lost contact with nearly half its clients.
