Air Bridges Over Troubled Water?

Holidaymakers and the travel industry wait with bated breath for the government’s now long delayed announcement on the immediate future for cross-border travel in light of the ongoing coronavirus pandemic. So far, we have had to content ourselves with leaked plans masking a distinct sound of silence from the government. For many the dangling conversation will be asking; why is a list of ‘safe’ countries quite so difficult to draw up?

I recently held a webinar dealing with the potential for claims relating to exposure to COVID-19 where I briefly dealt with the problem that the government faces in allowing quarantine free travel to occur (Link: https://www.farrarsbuilding.co.uk/webinar-travel-law-covid-19-where-do-we-go-from-here/).  

It appears to me that the main issue causing delay is the UK’s geopolitical and legal relationship with the EU and this is exacerbated due to the liminal period which the UK finds itself in following Brexit.

Under the terms of the transitional arrangements, EU rules on free movement of persons continue to apply to the UK. Under the Treaty for the Functioning of the European Union free movement must be extended to workers, citizens and residents (Article 45 TFEU). Pursuant to the Free Movement Directive (2004/38/EC) derogation from the principle of free movement is permitted where a Member State is combatting a disease with epidemic potential (Article 29). Therefore, while closed or restricted borders are anathema to the European project, there are exceptions which may be invoked when a Member State finds itself in the grip of a pandemic. The permitted derogations have allowed the Member States of the EU (and the UK) to adopt the same patterns of action in relation to preventing the spread of infection, namely by closing their borders and limiting travel through compulsory quarantines. Due to the differences in, not only the severity and duration of outbreaks, but also the resources of the various member states, compliance with EU law when re-opening the borders is proving much more challenging.

On 15^th April 2020 the European Commission published the Joint European Roadmap, explicitly this document did not apply to the UK but is instructive in showing the kind of conduct which the EU will expect in order to maintain community compliance. The guidance is crystal clear that the EU will not accept any maintenance of border restrictions which are unjustifiably discriminatory (pursuant to Article 21 of TFEU). The roadmap sets out three criteria which could allow the opening of borders between individual member states and which therefore could correspondingly be used to restrict movement between others:

• Epidemiological Criteria – including the number of cases, per capita cases and the patterns of the epidemic;

• Health System Capacity – including availability of intensive care services and how close any individual system is to being overwhelmed;

• Appropriate Monitoring Capacity – including the availability of testing, surveillance and contact tracing as well as the reliability of figures reported.       

In broad strokes, if a Member State can justifiably suggest that any of the three criteria are not similar between their own country or as between other countries to whom they have opened their borders then they are likely to be justified in maintaining closed borders or a system of quarantine.

The EU Commission has confirmed that they will intervene to “request the lifting of measures which are considered disproportionate”. Blanket quarantines for incoming passengers (whether homeward bound or not) have been specifically singled out as measures which will have to be very carefully scrutinised. As recently as 14^th May 2020 infringement proceedings were brought against the UK for breaches of the freedom of movement directive. These related to various workers and benefits rights rather than border restrictions per se but it demonstrates that the EU will probably not hesitate to act if the UK acts in a manner which is non-compliant.

In order to permit an airbridge with Greece or Spain, but not for example with Portugal, the government will have to be extremely wary of setting up its reasoning in a clear and cogent manner. Portugal’s epidemic dropped to an average infection rate of under 200 cases per day in May but has slowly risen to around 350 cases per day in June. The government will have to consider whether, notwithstanding the comparatively (to our own situation) low numbers of infections and deaths, a different policy is justified under EU law as between Spain and Portugal. This is further complicated by the different methods of recording as between different countries which makes international comparison difficult. Notably in Spain the methods for calculating deaths changed in May 2020 causing their figure to be revised down and resulting in very few daily deaths being reported thereafter. Challenges through EU bodies or judicial review in the UK could become a reality for the Government how ever they restrict movement.

The union politics of the 27 member states aside, the UK government also must contend with the individual relationships with EU Member States. This is particularly important during the Brexit negotiation process where any strain on those relationships could have serious consequences for any future trading arrangements with the EU. One may recall the announcement of a quarantine free travel with France, followed by a u-turn on the policy and then a French twist of a reciprocal quarantine being imposed on the UK which did nothing to improve cross channel relations.

Adding to the woes of anyone predicting exactly which countries we will be permitted to travel to (quarantine free or not) the European Council announced on 30^th June 2020 a list of 15 countries that it has identified as ‘safe’. The list is non-binding on Member States (or indeed the UK) but there will doubtless be considerable political pressure to avoid deviating too far from the list if the UK wants to be eligible for an open border policy between itself and other EU Member States. Again, these arrangements must be considered with due regard to the UK’s interest in negotiating trading relationships with third party countries outside the EU in the near future.  

Finally, there are the publicised disagreements within the United Kingdom itself. While Scotland, Wales and Northern Ireland are devolved in relation to health and therefore pandemic response they are not devolved in relation to foreign policy. The concept of air bridges treads dangerously close to that line.

It therefore remains unsurprising that the UK is finding pinning down a list of ‘safe’ countries so challenging. In short, the geopolitical and legal situation surrounding quarantine is very complex. You would have to be a roving gambler to commit to any holiday prior to the government’s announcement, and the travel industry may continue to find it difficult to keep the customer satisfied in the circumstances. 

Despite all of the above, it seems clear that there is a real desire to restart international travel without too much delay and as travel lawyers we can look forward to some return to normal in the near future. As a citizen of the planet I hope to shortly be back with old friends just as soon as quarantine free travel can provide us all with some much needed comfort and joy. 

There will be bonus points for any reader who can identify the 11 Simon & Garfunkel references within the above article. I look forward to receiving your guesses by email.

Frederick Lyon of Farrar’s Building

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