Quarantine after international travel: legal obligations, public health advice, pervasive confusion

Oran Doyle,  Trinity College Dubin

Restrictions on international travel have received much public attention over the past few weeks. On Wednesday 22 July, the Government published a green list of countries in Europe with relatively low prevalence of COVID-19. Anyone arriving from those countries, the Government says, will not have to restrict their movements on their arrival in Ireland. The Opposition strongly criticised (€) this decision for undermining the Government’s advice against non-essential travel. The Sunday Times reported (€) yesterday that Ryanair has written to the Taoiseach threatening an injunction and judicial review if the government does not revise its list of lower-risk countries to include popular travel destinations such as Britain, France, Spain and Germany.

Although coming from opposite perspectives, the criticisms from both the Opposition and Ryanair highlight the same fundamental confusion surrounding the Government’s position, namely that there is no legal obligation on any international passengers to quarantine or restrict their movements after their arrival in Ireland.

SI 181/2020 Health Act 1947 (Section 31A -Temporary Requirements) (Covid-19 Passenger Locator Form) Regulations 2020 was made by the Minister for Health on 24 May 2020. The initial expiry date for the Regulations was 18 June 2020. This was extended first to 9 July 2020, then to 20 July 2020, and most recently to 10 August 2020. There has been no change to the substance of the Regulations since they were initially made in May 2020.

The core obligations in the Regulations are for international passengers (with some exceptions), on or before their arrival in the State, to complete the COVID-19 Passenger Locator form in respect of themselves or any children and give the form to an immigration officer. The form seeks information about how international passengers arrived in the State and details of their place of residence for the following 14 days. If they change their place of residence or contact details, they must make reasonable efforts to provide this updated information in writing. They must comply with any request from an immigration officer or member of the HSE COVID-19 Contact Management Programme to provide information or documentation to verify and clarify the particulars in the form or, after their arrival, to confirm where they are actually residing.

These obligations are deemed to be penal provisions, meaning that their breach can be punished by a fine of up to €2,500 and/or a term of imprisonment of up to six months. Also, a garda can direct the passenger to comply with the obligations; failure to comply is punishable in the same way.

The Government’s most recent decision is that passengers arriving from 15 European countries with a relatively low prevalence of COVID-19 do not have to restrict their movements. Passengers arriving from other countries are ‘asked to restrict their movements for 14 days’. This wording reflects the legal position, namely that there is no obligation in the Regulations on international passengers to restrict their movements; they are only requested to do so.

The HSE website is much more strongly worded, stating that if you arrive into Ireland from a location that is not on the green list ‘you will have to restrict your movements for 14 days’ or—on another page of the website—that people arriving from overseas will ‘need to restrict their movements for 14 days’. This follows the HSE’s general approach, noted several times on this blog, of escalating language so that public health advice takes on an apparently compulsory character. The HSE website explains ‘restrict your movements’ as meaning to stay at home and avoid contact with other people and social situations as possible: not using public transport, visiting others, meeting face-to-face with anyone at higher risk from COVID-19, going to the shop unless absolutely essential.

In summary, the only legal obligations on international passengers are to provide, confirm, and update information about where they will be or are residing. There is no legal obligation to restrict movements. There is public health advice to restrict movements unless arriving from one of the ‘green list’ countries. The HSE presents that public health advice in mandatory terms, but the Government is more careful not to present the advice as obligatory.

In this light, it is rather difficult to discern from yesterday’s newspaper report precisely what Ryanair intends to challenge. Solicitors for Ryanair took issue with the fact that the Government’s restrictions have been put in place on a non-statutory basis. They claimed the government’s travel restrictions had not been subject to the democratic safeguards, checks and balances inherent in ‘the constitutionally mandated process of law-making provided for under the constitution’. But the ‘constitutionally mandated process of law-making’ is only mandated for making laws. The restrictions with which Ryanair takes issue are not laws, but advice. There is no constitutional basis for any obligation on the Government to adopt legislation rather than advice.

Could Ryanair claim that it had property rights interests that were affected by the Government’s advice, triggering some sort of fair procedures obligation for the Government? This would be an ambitious argument. Clearly there is an effect on Ryanair’s business if people follow Government advice about international travel. But this seems too attenuated to generate any legal obligation on the Government formally to seek Ryanair’s views before issuing its advice. Thousands of businesses have been adversely affected by citizens following public health advice during the pandemic. Can it credibly be said that the Government was under a legal obligation to consult all of them prior to issuing the advice?

Nonetheless, there remain serious rule of law concerns with the HSE’s willingness to present public health advice in mandatory terms. It disrespects individual autonomy to blur the distinction between what is legally obligatory and what is merely advised. This presentational practice has occurred, however, across so many aspects of the state’s response to COVID-19 that it must be viewed as a deliberate strategy. It is a dangerous strategy that sows confusion and over time is likely to diminish public trust in important public health messages.

 

Oran Doyle is a professor in law in Trinity College Dublin and director of the COVID-19 Law and Human Rights Observatory.

 

Suggested citation: Oran Doyle, 'Quarantine after international travel: legal obligations, public health advice, pervasive confusion' COVID-19 Law and Human Rights Observatory Blog (27 July 2020) https://tcdlaw.blogspot.com/2020/07/quarantine-after-international-travel.html

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The information provided in this document is not legal advice or professional advice of any other kind, and should not be considered to be such, or relied or acted upon in that regard. If you need legal or other professional advice, you should consult a suitably qualified person.