Your home; a castle, or a prison? International travel and Self-Isolation – the new rules from 8 June 2020

The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 SI 2020 No. 568 (‘International Travel Regulations)

and

The Health Protection (Coronavirus, Public Health Information for Passengers Travelling to England) Regulations 2020 SI 2020 No. 567 (‘Information for Passengers Regulations’)

These two statutory instruments were laid before Parliament on 3 June 2020 and came into force on 8 June 2020. Together, and read with associated guidance on the gov.uk website, they create a new regime imposing quarantine for recently arrived passengers from outside of the common travel area, and require travel operators to provide passengers with certain public health information regarding the Covid-19 pandemic. This article represents the writer’s initial analysis of the relevant regulations. The government’s on-line guidance associated with the regulations is liable to regular change, and is not considered in detail here. The regulations considered here are also those applicable to England. Similar but not identical provisions exist in relation to travel in other parts of the United Kingdom.

The self-isolation rules

As per the ‘explanatory note’ of the end the International Travel Regulations:

These Regulations impose requirements on people arriving in England from outside the common travel area (that is, the open borders area comprising the United Kingdom, the Republic of Ireland, the Isle of Man, and the Channel this Islands), in order to prevent the spread of infection or contamination from coronavirus or coronavirus disease.

The Regulations require those people (i) to provide information including contact details and details of their intended onward travel, and (ii) to self-isolate for a period of 14 days following their arrival in the common travel area. Certain categories of person, including flight crew etc. are exempt from the requirements.

These Regulations also require people who arrive in England from another part of the United Kingdom, and who have arrived in the United Kingdom from outside the common travel area in the past 14 days, to self-isolate until 14 days after their arrival in the common travel area.

Self-isolation

The most significant burden imposed by the International Travel Regulations is a requirement to self isolate, in Reg 4. This requires that where a person ‘P’ arriving in England from outside the common travel area, or, arriving in England from within the common travel area but who has been outside of the common travel area within the previous 14 days, that person must remain in isolation from others (‘self-isolate’) at a given address. If P has no address at which they can self isolate, they must self isolate in accommodation facilitated by the Secretary of State (Reg (4)(3)(a)(iii)).

The address for self-isolation must be P’s home, the home of a friend or family member, or a hotel, hostel, bed and breakfast accommodation, or ‘other suitable place’ (Reg 4(4)).  They may stay at more than one place of self-isolation if a legal obligation requires P to change address, or it is necessary for P to stay overnight at one address on arrival in England before travelling directly to another address where they will be self isolating (Reg 4(5)). P must on their arrival in England, travel directly to the place at which they are to self isolate (Reg 4(7)).

P must self isolate for a period ending on the 14^th day after they entered the common travel area, or until they leave England (Reg 4(7)). P can self isolate with other persons with whom they travelled when arriving in England and who are also self-isolating with P. There is no need for P to self isolate from other members of their household in England with whom they did not travel.

P may only leave the place where they are self isolating save for following: to leave England; to seek urgent medical assistance, to fulfil a legal obligation, to avoid injury or illness or to escape a risk of harm, on compassionate grounds including (in limited circumstances) to attend a funeral, to move to a different place of self-isolation. P may also leave their place of self-isolation in ‘exceptional circumstances’ such as to obtain basic necessities such as food and medical supplies where ‘it is not possible to obtain these provisions in any other manner’ (Reg 4(9)).

Certain persons are exempt from having to self isolate, as set out in Parts 1 and 2 of Schedule 2 to the Regulations. The list of exemptions is long, but the individual exemptions are very specific and are for very restricted categories of persons which will exclude the vast majority of people seeking to enter England as, for example tourists or family visitors, or UK residents returning from trips abroad.

Reading the list of exempt persons is not for the fainthearted, but those exempt from self-isolation include those set out in Part 1 of Schedule 2, which includes certain diplomatic and consular staff, and Crown servants. Those set out in Part 2 of Schedule 2 include transit passengers (§5); road haulage workers or road passenger transport workers (i.e. lorry drivers) (§6);  certain seamen (§7); shipping pilots (§8); air crew (§10); certain staff relating to the operation of the Channel Tunnel (§12); returning police engaged in ‘essential policing’ (§13); workers engaged in essential emergency works relating to water supplies and sewerage (§17), or electricity generation (§18); workers in essential infrastructure industries including nuclear energy (§19), aerospace engineering (§19-20), and the oil industry (§24); postal workers who have travelled to the UK in the course of their work (§25); and persons involved in transport logistics or waste management, if they have travelled to the UK in the course of their work (§26-27).

People may enter the England to receive health care, so long as they are to reside at the place where there are receiving health care (Schedule 2, §28). Persons intending to work as certain types of health care professional are also exempt (Schedule 2, §30.).

People who travel very regularly (at least once a week) in and out of England to another country for their work appear to be exempt under §37 of Schedule 2. Certain seasonal workers are also exempt.

An analysis of the regulations demonstrates that visits to England to visit family will be possible, so long as the visitors remain self-isolated the first two weeks of their visit. Whilst inconvenient, this is not necessarily incompatible with the purpose of a family visit. However, UK residents who intend to travel outside of the common travel area will have to search through the list of jobs in Schedule 1 very carefully before making the important decision to travel, or face the prospect of adding another two weeks on top of any foreign holiday whilst self isolating at home upon return.

How it works in practice

Regulation 3(1) of the International Travel Regulations requires a person intending to travel to England from outside the common travel area to complete a ‘Passenger Locator Form’ providing certain mandatory ‘passenger information’. Persons described above in Part 2 of Schedule 2, whilst being exempt from self-isolation, are still required to complete this form. This is slightly odd, as the information within the form requires them to state, amongst other things, the address where they intend to self-isolate, even though such persons are not required to self-isolate. Persons in Part 1 of Schedule 2 are, in addition to being exempt from self-isolation, also exempt from completing the form. Quite how any traveller should prove that they are exempt from any particular requirement of the Regulations is not clear.

The information on the Passenger Locator Form is to be provided on arrival (or in the 48 hours before arrival: Reg 3(6)).

The required passenger information is set out in Schedule 1, and includes (amongst other details):

1. Personal details of the passenger, including name, sex, date of birth, passport or travel document number, telephone number, home address and email address; and
2. Journey details of the passenger, including the address or addresses where they intend to self isolate, the date of their proposed arrival at that address, the operator they are travelling with, or through which their booking was made, a booking reference number, flight number, train number, or ticket number, the name of any organised travel group with whom they are travelling, the location at which they will arrive in the UK, the country from which they are travelling, the date and time of their proposed arrival in the UK, whether they are connecting through the UK to a destination outside the UK, and if so, the details of that.

Guidance on gov.uk here provides that:

Before you travel, you should provide your journey, contact details and the address where you will self-isolate. You will be able to complete the public health passenger locator form 48 hours before you arrive. You must present these details on your arrival in England.

The form is completed on line, here.

Enforcement

Under Reg 5, ‘authorised persons’, meaning a constable or other person designated by the Secretary of State for the purpose, may, if they have reasonable grounds to believe that a person has left or is outside of the place where they are supposed to be self isolating, direct that person to return to that place, or actually remove him to that place, or to accommodation facilitated by the Secretary of State and may use reasonable force to do so (Reg 5(3). These are clearly significant powers.

Criminal offences are set out under Reg 6. A person who:

(a) without reasonable excuse contravenes a requirement in regulation 3,

(b) contravenes a requirement in regulation 4, or

(c) without reasonable excuse contravenes a requirement in or imposed under regulation 5,

commits an offence.

Thus, its appears that ‘reasonable excuses’ may be proffered for failing to complete the Passenger Locator Form (Reg 3), and for failing to comply with a request to return to one’s place of self-isolation, (Reg 5), but being outside of one’s place of self-isolation, in contravention of Reg 4, is an offence not qualified by having any reasonable excuse. However, it is anticipated that this is because Reg 4 itself already contains a number of caveats and explanations that may potentially be advanced to avoid being in infringement of the regulation. It can be seen however that the test in Reg 4(9)(g) of being outside to obtain basic necessities such as food and medical supplies for those in the same household, where it is not possible to obtain these provisions in any other manner, is said to be an excuse only in ‘exceptional circumstances’. This is clearly more restrictive than the original  prohibition on being outside of the place where you are living, as per Regulation 6 of the original ‘lockdown regulations’ in The Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 in its original form as from 23 March 2020 (where a ‘reasonable excuse’ could be offered).

It is also an offence to intentionally or recklessly provide false or misleading passenger information (Reg 6(3)). These offences are punishable on summary conviction by a fine.

Alternatively, conviction may be avoided by paying a fixed penalty notice of a whopping £1000 for being in contravention of Regulation 6(1)(b) or (c) (ie being outside of one’s place of self-isolation, or refusing to comply with a requirement to return to one’s place of self-isolation). Fixed penalty notices may be issued in relation to failures to complete the Passenger Locator Form, of £100 for the first penalty, doubling for subsequent penalties, up to a maximum of £3,200 for the sixth and subsequent penalties (Reg 7(6)).

The regime for travel operators/procedures whilst travelling

As per the explanatory note at the end of the Information for Passengers Regulations:

These Regulations impose requirements on persons (“operators”) operating commercial transport services for passengers travelling to England by sea, air or rail from outside the open borders area comprising …the “common travel area’ …

Regulation 3 requires operators to ensure that passengers who arrive in England on such services, other than during an exemption period … have been provided with certain public health information in the required manner … on three separate occasions. Breach of this requirement is an offence.

Regulation 6 requires operators to keep records and to provide authorised persons … With copies of those records and other information about how they are complying with the requirement to provide information to passengers. Breach of these requirements is also an offence.

Reg 3 of the Information for Passengers Regulations introduce a requirement on sea, air and rail travel operators to ensure that certain ‘required information’ regarding coronavirus, coronavirus disease and related duties and public health guidance, in particular duties and guidance applying to passengers arriving in England, is provided to passengers ‘in the required manner’.

The required information, and the manner in which it is to be provided, is provided for in Reg 4 – the information is to be specified by the Secretary of State from time to time by placing a statement on the gov.uk website regarding coronavirus, and certain public health guidance. The Secretary of State shall also specify the manner in which the information is to be provided.

The required information has been sent out, here. The guidance seems capable of rapid change, for example during the short time taken to write this article, the original web page for that guidance was no longer functioning and was moved elsewhere. It is clear, however that under Regulation 3(2), the required information must be given to passengers at each of the following times:

(a) before any travel booking is made (where the bookings made after the commencement of the regulations);

(b) at the check-in; and

(c) while a passenger is on board the vessel, aircraft or  train.

The nature of the information to be given is different at these various points in time. For online bookings, the booking must contain link to the web page: https://www.gov.uk/uk-border-control on the gov.uk site:

Coronavirus (COVID-19) and entering or returning to the UK

If you’re a resident or visitor travelling to the UK, you must:

• provide your journey and contact details
• not leave the place you’re staying for the first 14 days you’re in the UK except in very limited situations (known as ‘self-isolating’)

You may be fined up to £100 if you refuse to provide your contact details. You may be fined more if you break this rule more than once. You may also be fined up to £1,000 if you refuse to self-isolate, or you could face further action.

There are different self-isolation rules and penalties depending on whether you are travelling to:

• England
• Scotland
• Wales
• Northern Ireland

Who does not need to provide their details or self-isolate for 14 days

You do not need to complete the form or self-isolate if you’re travelling from one of the following places, and you were there for 14 days or more:

• Ireland
• the Channel Islands
• the Isle of Man

There are other reasons why you might not need to complete the form or self-isolate. Read the list of who does not need to complete the form or self-isolate.

Travel operators must advise travellers making telephone bookings to visit the same page. Further, travellers checking in online must be directed to the same page, and an oral prompt to visit the page must be given at check-in in person at airports. There is a specific text given for mandatory announcements to be given in-flight, and rail operators are required to give announcements setting out (in less prescriptive terms ) certain matters of health advice when travelling to England.

The Secretary of State may suspend the requirement to provide the required information during an ‘exemption period’ under Reg 5, and the obligation may be reinstated by announcement, after consultation with the Chief Medical Officer of the Department of Health and Social Care.

An operator must, under Reg 6, keep records of the steps it has taken to comply with the information requirement and ‘authorised persons’ from the Secretary of State for  Transport, the Civil Aviation Authority, or the Office of Rail and Road may request copies of the records kept by operators to determine with the information requirement has been complied with. A failure by an operator to either keep or to provide records amounts to a criminal offence punishable by a fine.

If another person makes a booking for a passenger, or checks another passenger in, the operator complies with the regulations if they ask in writing that the person who books the journey/checks the passenger in provides the required information to the passenger (Reg 3(5) and (6)).

Under Reg 3(7) and (8), an operator who fails to comply with the information requirement is guilty of an offence punishable by summary conviction by fine. Alternatively, an operator may instead be given the opportunity of paying a fixed penalty notice of £4000 (Reg 7).

Conclusion

The majority of non-lawyers will more likely have regard only to guidance issued by the government on its website. However, this article has been intended to provide the reader with a reference to the statutory instruments under which this new scheme is derived.

The successful operation of the scheme will no doubt be problematic. There may be challenges to the vires of the requirement to self isolate, the power to impose fines and fixed penalty notices, and to the power of the Secretary of State to authorise people to use reasonable force to enforce the self-isolation requirements.

Whilst the original ‘lockdown regulations’ (see §18 above) have been repeatedly amended so as to gradually extend both the range of businesses that are now permitted to reopen, and the range of activities permissible outside one’s home, this new self-isolation regime pulls in the opposite direction, requiring returnees to stay at home, and necessarily, if they cannot work from home, to refrain from working. The scheme has been described as ‘too much, too late’. The right to work is protected as an element of one’s private life under Article 8 ECHR, and whilst thus a qualified right, the question of whether these statutory instruments represent a proportionate interference with that right, and of other rights, for persons returning to the UK after travel abroad, remains to be seen.

These are interesting times.

Rory O’Ryan is a barrister at Garden Court North Chambers.