Restrictions on international travel: where things stand

 Oran Doyle, Trinity College Dublin

 

Introduction

There were no restrictions on international arrivals during the early stages of the pandemic. From May to December 2020, there were only minimal obligations to complete a passenger locator form. Beyond that, it was a matter of public health advice—as explored in the Ryanair case and previously on this blog. Since January 2021, the obligations have been steadily increased with obligations to take PCR tests applied to a widening range of countries, then obligations to self-quarantine, and now with the Oireachtas set to introduce mandatory quarantine at designated facilities for some international passengers. At the same time, the law has been tightened to ensure that visitors from Northern Ireland are subject to the same restrictions on their movements as residents in the state. Finally, at the end of December and start of January, the Government imposed a general ban on passenger flights from Great Britain.

 

In this blog post, I identify the core legal restrictions that apply to international travellers and how they have evolved. The post is not a critical analysis of the restrictions. But in that regard, I recommend Prof Conor O’Mahony’s excellent blog post on the constitutionality of introducing compulsory quarantine at designated facilities.

 

Passenger locator form

The COVID-19 Passenger Locator Form Regulations were made by the Minister for Health on 24 May 2020. These have been amended on several occasions (most notably to move from a paper-based system to an online system), but the core obligations remained the same and minimal. On or before their arrival to the state, international passengers must complete the COVID-19 Passenger Locator Form in respect of themselves or any children. 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. 

 

PCR tests 

In early January 2021, the Minister for Health first made regulations imposing requirements on passengers arriving in the State from Great Britain and South Africa to have negative PCR tests. The regulations have been replaced and broadened on several occasions. The current law is found in SI 44/2021 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021. These regulations came into force on 6 February 2021 and are scheduled to remain in force until 5 March 2021. At the time of writing, no extension regulations have been published but they likely will be.

 

Passengers who arrive in Ireland from any other state, excluding Northern Ireland, are required to do a PCR test and have a ‘not detected’ result prior to travelling to Ireland. Responsible adults are subject to obligations in respect of those in their care aged 7-18. Children under the age of 7 are not required to have PCR tests. On arrival in the state, the traveller or responsible adult must make the test result available to an immigration official. An international traveller who arrives in the State without a PCR test result is obliged to undergo a PCR test as soon as practicable and at the latest within 36 hours. These are all penal provisions, meaning that they are subject to criminal enforcement.

 

It is noteworthy that the provisions do not distinguish between citizens and non-citizens, and that having a ‘not detected’ PCR test is not a precondition for entry into the state.

 

There are several exemptions, including for those involved in international transport, those who are transiting through Ireland, and those who have been out of Ireland to perform the functions of an office held under the Constitution or an enactment, or as a member of the Oireachtas, a local authority, or the European Parliament. There is no specific exemption for Members of the European Commission, although they may be covered as staff members of an international organisation. Commissioners beware!

 

Home quarantine

SI 44/2021 Health Act 1947 (Section 31A – Temporary Restrictions) (Covid-19) (Restrictions upon Travel to the State from Certain States) (No. 4) Regulations 2021 also introduced obligations to self-quarantine.

 

The precise obligations to self-quarantine vary depending on whether the traveller has been in a category 2 state in the period of 14 days prior to arrival in Ireland. Brazil and South Africa were listed as category 2 states in the original regulations, but the Minister may add other states. As of 26 February 2021, the Minister had added a further 31 states. All states not listed remain category 1 states.

 

Travellers arriving from category 1 and category 2 states are all initially required to self-quarantine for 14 days. This is a penal provision. However, travellers from category 1 states are relieved of the obligation if they obtain a ‘not detected’ PCR test more than five days after their arrival in Ireland. Travellers from category 2 states do not benefit from this leeway. The self-quarantine must take place in the traveller’s place of residence, as specified in the passenger locator form.

 

There is a range of exceptions for travellers from category 1 states, including emergency reasons, the carrying out of critical repair and maintenance work, journalism, and participating in international sporting events as sanctioned by Sports Ireland. The range of exceptions for travellers from category 2 states is limited to ‘unavoidable reasons of an emergency nature to protect a person’s health or welfare’, to travel from her point of entry to her residence, to avail of a PCR test when requested in writing to do so by the HSE, and to leave the state.

 

Travel from Northern Ireland

During the most extreme lockdowns, it has been a criminal offence to leave one’s home without a reasonable excuse. There has been a list of specified reasonable excuses—including travel for essential work, exercise within 5km, etc—as well as a residual category of ‘reasonable excuse’. However, these restrictions only applied to people whose residence is located in the state. As a result, people resident in Northern Ireland were not subject to any movement restrictions once they crossed the border and entered the state.

 

This has been changed by SI 29/2021 as of 1 February 2021. Regulation 4(1) of SI 701/2020 Health Act 1947 (Section 31A - Temporary Restrictions) (Covid-19) (No. 10) Regulations 2020 as amended provides that any person who is not ordinarily resident in the state shall not travel within the state without reasonable excuse. The list of reasonable excuses for residents in the state to leave their homes now applies to non-residents travelling in the State. So, for example, a person resident in Northern Ireland might cross the border and then travel in the state for the purposes of attending a medical or dental appointment (regulation 4(2)(g)). Only one of the reasonable excuses is subject to a distance restriction, exercise within a 5km radius of a person’s place of residence. It follows that a resident from Northern Ireland can only exercise in the state if their residence in Northern Ireland is less than 5km from the border.

 

These changes have a wider application than just people from Northern Ireland travelling in the state: any person visiting the state is now subject to the same restrictions as those resident in the state.

 

Hotel quarantine 

At the time of writing, the Health (Amendment) Bill 2021 has been passed by the Dáil and is under consideration by the Seanad. If enacted, this will introduce a system of compulsory quarantine at a designated facility for two categories of international travellers: those arriving from ‘designated states’ and those arriving without a PCR test. Those from designated states must quarantine in the designated facility for 14 days, or shorter if they take a PCR test on the 10th day and it returns ‘not detected’. Those without a PCR test must quarantine for 10 days or until they receive a ‘not detected’ PCR test result. Anyone released from quarantine before the 14 day period elapses must then quarantine at home in accordance with the regulations described above. Where a PCR test is returned ‘detected’, the quarantine period is extended. 

 

If a person is subject to the quarantine requirement because she has a PCR test but it shows that the virus was detected, she may be discharged to home quarantine if a medical officer of health is satisfied that she can effectively isolate in her residence. Such a person would, however, still have committed a criminal offence by not providing a ‘not detected’ result to the immigration officer upon entering the state.

Those subject to these obligations will be required to pre-book themselves into designated facilities. 

 

Flight bans

In December 2020, the Government issued a NOTAM (notice to airmen) requesting operators to suspend passenger flights from any and all airports and aerodromes in Great Britain, with the exception of repatriation flights and flights that had obtained a special permission from the Department of Transport. This restriction applied from 21 December 2020 to 6 January 2021.

 

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

 

Suggested citation: Oran Doyle, ‘Restrictions on international travel: where things stand’ (4 March 2020) https://tcdlaw.blogspot.com/2021/03/restrictions-on-international-travel.html