Is Mandatory Hotel Quarantine Compatible with EU Law?

[Editor's note: today and yesterday we have featured two blogposts that address the legal issues around mandatory hotel quarantine from different perspectives. Today Professor Tobias Lock of NUI Maynooth addresses the EU law issues. Those interested in the constitutional issues can consult Professor Conor O'Mahony of University College Cork’s post from yesterday].

Tobias Lock, Maynooth University

The Health (Amendment) Act 2021 – signed into law on 7 March – provides for mandatory hotel quarantine for two types of travellers: those who have been in ‘in a designated state at any time within the period of 14 days prior to’ arriving in Ireland; and those who have not been to a designated state, but cannot produce a negative PCR test result upon arrival in Ireland. Travellers – no matter what nationality – are required to quarantine in a hotel room for 14 days. This period can be shortened if the traveller receives a negative test result on a test taken on the 10th day; but it can also be extended if there is a positive test result. The term ‘quarantine’ is not defined in the Act, but the Government understands it to mean that the traveller must stay in their hotel room on their own at all times, save for pre-booked short ‘fresh air breaks’.

 

The Act gives the Minister for Health powers ‘to designate in writing any state … where there is known to be sustained human transmission of Covid-19 … or from where there is a high risk of importation of infection or contamination with Covid-19’.

 

This blog post argues that mandatory hotel quarantine is justifiable under EU free movement law, but that the very narrow exceptions to it in the legislation must be interpreted broadly for mandatory hotel quarantine to be a proportionate restriction of EU law rights.

 

Who can rely on EU free movement law?

According to Article 21 (1) TFEU, EU citizens have the right to move and reside freely within the territory of the Member States. The Citizens’ Rights Directive (CRD) provides further details: Article 5 CRD stipulates a right of entry; and Article 6 a right to reside for up to three months without any conditions or formalities.

 

According to Article 3 CRD, these rights entitle EU citizens ‘who move to or reside in a Member State other than that of which they are a national’ as well as their family members (e.g. spouse or children) who accompany them. It does not matter whether they enter that other Member State from within the EU or outside.

 

Irish citizens are not within the scope of the Directive when entering the state as EU citizenship law does not cover purely internal situations, i.e. where there was no movement across an EU border. However, the famous Surinder Singh case law of the Court of Justice of the EU extends EU citizenship rights to a member state’s own nationals where that national has previously moved to another EU member state and is now returning. While Singh itself concerns the status of the returning citizen’s spouse, its reasoning shows that returning citizens enjoy all rights associated with EU citizenship as otherwise a ‘national of a Member State might be deterred from leaving his country of origin in order to pursue an activity … as envisaged by the Treaty in the territory of another Member State if, on returning to the Member State of which he is a national …, the conditions of his entry and residence were not at least equivalent to those which he would enjoy under the Treaty or secondary law in the territory of another Member State’.

 

Hence an Irish national returning from another EU member state where they might have worked or studied or been on holiday can rely on EU free movement law against the Irish state.

 

By contrast other EU nationals can do so even when entering Ireland from a third country, so that the for the question whether mandatory hotel quarantine is compatible with EU law it is irrelevant where the EU citizen is entering the state from. According to media reports, the initial list of ‘designated states’ would have seen an additional 16 EU member states on that list, but this was pared down to only one (Austria), allegedly due to concerns voiced by the Attorney General that this could be contrary to EU free movement law. Yet given that EU free movement law applies even for arrivals from outside the EU – so long as they are non-Irish EU citizens – this advice, if it was indeed given, was based on a category error: it is the status of the traveller as an EU citizen that is decisive, not the country where they have travelled from.

 

Restriction of free movement rights

There is little doubt that mandatory hotel quarantine constitutes a restriction of EU citizens’ free movement rights: it denies their right to move freely within Ireland during the period of mandatory quarantine and furthermore, it has a deterrent effect on anyone considering exercising their free movement rights to come here in the first place, e.g. holidaymakers or other visitors, so that the measure also has a restrictive effect on the rights to enter the state and to reside there for up to three months (or longer provided additional criteria are met).

 

According to Article 27 CRD, EU citizens’ free movement rights can be restricted, however, on grounds of public policy, public security or public health. According to Article 29 CRD only diseases ‘with epidemic potential’ can be used to restrict free movement, which is the case with Covid-19. Additionally, every measure restricting free movement law must comply with the general EU law principle of proportionality.

 

Furthermore, mandatory hotel quarantine not only constitutes a restriction of the right to free movement, but also a restriction of the right to liberty guaranteed by Article 6 of the Charter of Fundamental Rights (CFR). According to Article 51 (1) CFR, the Charter applies when a member state ‘is implementing Union law’, which occurs – as is the case here – where a member state restricts free movement rights. Most Charter rights can be restricted under the conditions formulated by Article 52 (1) CFR, which are that the limitation must be provided for by law, respect the essence of the right concerned, and be proportionate.

 

Justification of mandatory hotel quarantine

As a matter of EU law therefore any mandatory hotel quarantine measures affecting those exercising the EU rights must be meet the proportionality test. The measure must pursue a legitimate aim; it must be suitable, i.e. actually capable of achieving this aim; it must be necessary, i.e. it must be the least restrictive measure to effectively achieve the aim; and it must strike a proportionate balance between the competing interests involved.

 

Mandatory hotel quarantine pursues the legitimate aim of protecting human life and public health. It is also a measure suitable to achieve this aim: by forcing people arriving in the state to reduce their physical contact with other persons to zero for two weeks, there is a very high likelihood that they will not pass on the virus if they carry it.

 

It is questionable, however, whether mandatory hotel quarantining is both necessary and proportionate.

 

Necessity

Mandatory hotel quarantine would only be necessary if there are no alternatives that would be equally effective in preventing the spread of Covid-19. Three potential alternatives come to mind: production of a negative PCR test result upon arrival; full vaccination against Covid-19; self-quarantine at home.

 

A negative PCR test result obtained before coming to Ireland does not guarantee that the traveller has not infected themselves after the test or indeed that the test is not a false negative. Hence it is not is as effective at preventing the spread of Covid-19 as hotel quarantine.

 

The same is true for full vaccination against Covid-19, but for different reasons: scientists are not yet certain whether vaccination prevents infection and transmission of Covid-19. In cases of scientific uncertainty, EU law allows member states to operate on the basis of the precautionary principle, i.e. if there are reasonable grounds for concern about negative effects of an activity – such as travel even if vaccinated – then member states have discretion to restrict that activity in the interest of public health (see e.g. the Pfizer decision, in which the General Court upheld an EU ban on antibiotics in animal feed despite scientific uncertainty as to the effects on human health). Hence mandatory hotel quarantine even for those vaccinated is likely to be considered ‘necessary’.

 

The situation is less clear with regard to the alternative of self-quarantine. If a traveller is able to quarantine at home without having any contact with another person for 14 days, then quarantining at home could be considered a less restrictive but equally effective measure. The key concern on part of the state would be compliance: whereas the state can enforce hotel quarantine relatively easily, enforcement of quarantine at home is harder – and in case of a person quarantining in a home shared with others – nigh impossible. Hence mandatory hotel quarantine could arguably be considered the more effective alternative. However, as will be argued below, it may well be disproportionate in the strict sense.

 

Proportionality - balancing

Finally, mandatory hotel quarantine must be proportionate stricto sensu, i.e. when balancing the competing interests involved, the state’s interest in protecting public health must prevail. The following factors are broadly in the mix: on the one hand, Covid-19 is highly contagious and presents a high risk to public health and human life. Mandatory hotel quarantine is also not the most severe measure the state could have adopted: a complete travel ban would constitute a stronger restriction of free movement rights, so that mandatory hotel quarantine could be seen as a way to facilitate free movement despite the pandemic.

 

On the other hand, mandatory hotel quarantine consists in a severe restriction of the right liberty protected by Article 6 CFR: travellers must not leave their hotel room except for short breaks for 14 days. Leaving mandatory quarantine constitutes a criminal offence. Furthermore, it involves a considerable cost of ca. 1800 euro for a single traveller.

 

The regulations formulate certain exemptions, but these are mostly confined to persons performing certain jobs, such as airline pilots or diplomats. Most people can only escape mandatory quarantine by requesting a release from quarantine ‘on urgent humanitarian grounds’, reportedly applied in the case of a fully vaccinated traveller who had travelled to Ireland to be with his dying father.

 

Additionally, travellers who are unable to meet the quarantine cost, must still do so, but may apply for an exemption, the granting of which is in the discretion of the Minister (see Regulations 11-14 of S.I. No. 125/2021).

 

These exemptions are clearly designed to ensure compliance with proportionality. But it is doubtful that they go far enough at least in the following cases.

 

First, where a traveller can show that they are able to self-quarantine, it is hard to see how in light of the severe restrictions to personal liberty mandatory hotel quarantine can be required. The only argument in favour would be easier enforcement. It would, however, seem to be possible to enforce self-quarantine at home by way of regular checks, etc. The fact that enforcement of self-isolation requirements failed last summer cannot be a valid excuse for imposing far stricter measures. Only if the state can show that it enforcement is not possible, might this be the case. Hence EU law may force the state to grant an exemption under the condition that the traveller self-isolates at home. While the legislation only allows these for ‘humanitarian reasons’, the duty to interpret domestic legislation as far as possible in such a way that it is compliant with EU law (indirect effect), means that a person able to self-isolate should be able to avail of this exemption.

 

Secondly, EU law restricts the discretion of the state where the determination of ‘designated countries’ and exemptions from hotel quarantine or its costs are concerned. As for the former, EU law requires that the selection of countries is not arbitrary. It must therefore happen according to coherent criteria. The Health (Amendment) Act 2021 is fairly vague in this regard and more objective criteria – e.g. express reliance on the incidence of the disease in the country of origin – would make measures more EU law-proof.

 

Thirdly, where the situation of the individual traveller is concerned, the state’s exercise of discretion has to take account of EU law requirements, i.e. in every single case the state will need to determine the proportionality of the measure as a matter of EU law. This is a highly fact-specific exercise, so it is difficult to make general pronouncements on who may or may not have to be exempted from mandatory quarantine or at least from having to pay for it. For instance, a student returning home from their Erasmus year abroad might have a good case under EU law that they should not have to bear the costs of quarantine. The government seems to now recognise this when it announced that it would cover students’ quarantine costs. If mandatory hotel quarantine is still in place in the autumn, then the same would have to apply to incoming (Erasmus) students. Additionally, others returning from the EU (e.g. after completing an internship) who do not have the means of paying for their quarantine will have a good case under EU law to be exempt from having to pay.

 

Conclusion

In conclusion, this blog post showed that mandatory hotel quarantine is largely compliant with EU law requirements. However, given the far-reaching restrictions to personal liberty entailed, the exceptions are formulated too narrowly and will provoke challenges. Such challenges can be avoided if the state exercises the discretion given to it with good measure, at least in those cases where EU law applies: i.e. where EU citizens are entering the state or where Irish citizens are returning from another EU member state.

 

Tobias Lock is Professor and Jean Monnet Chair in EU Law and Fundamental Rights at Maynooth University. Professor Lock’s work is supported by the Erasmus+ Programme of the European Union.

 

Suggested citation: Tobias Lock, ‘Is Mandatory Hotel Quarantine Compatible with EU Law? (14 April 2021) https://tcdlaw.blogspot.com/2021/04/is-mandatory-hotel-quarantine.html