In this Article, Travlaw’s Milli Richardson, discusses what has become a particularly thorny issue in 2020 – FCDO Advice and travel advisories…
The newly titled Foreign, Commonwealth and Development Office (“FCDO”) has become 2020’s Bearer of Bad News. Whilst some aspects of society are returning to normal, others are remaining frustratingly restricted! One of the most unpopular and ever-growing restrictions are those on non-essential foreign travel. We wait with bated breath, hoping that our summer holidays aren’t placed on the proverbial “chopping block.” The 14-day quarantine rule has been limiting for both travellers and travel companies, leaving many of us thinking, “do I really need to follow FCDO Advice, and these rules at all?”
Legal Status of FCDO Travel Guidance
The binding nature of guidance in general is somewhat murky. Strictly speaking, “guidance does not have the binding effect of secondary legislation.” That being said, the courts have held that “a departure from the guidance will be unlawful unless there is a cogent reason for it.” [1]
This ambiguous position is echoed by the FCDO’s website. On one hand, the FCDO website states that “The purpose of Foreign, Commonwealth & Development Office (FCDO) travel advice is to provide information and advice to help British nationals make their own informed decisions about foreign travel.”[2] However, when navigating the website in search of destination-specific advice, the language used by the FCDO becomes more prescriptive, stating that “you will need to self-isolate for the remainder of the 14 days since you were in a non-exempt country.”[3]
Some clarity may be gleaned by the fact that the FCDO’s powers to restrict travel appear to be rooted in Coronavirus Act 2020 and The Health Protection (Coronavirus, International Travel) (England) Regulations 2020 (the “Covid-19 Travel Regs”) which allow for emergency rules to be put in place during the pandemic.
Reg. 4 of the Covid-19 Travel Regs provides that a person must self-isolate for 14 days if they arrive in England from anywhere outside the common travel area, made up of the United Kingdom, Ireland, the Isle of Man, and the Channel Islands. This means that the FCDO’s power to impose the 14-day self-isolation rule applies extremely broadly. The FCDO has then tempered its own powers by declaring certain territories “exempt” from this wide net.
So, although in most cases guidance is not strictly binding; in this instance, the presence of bedrock legislation provides a legal basis for the enforcement of FCDO guidance.
As a Traveller, what happens if I choose to ignore FCDO guidance?
Aside from the obvious health risks, a fine of up to £1000 awaits those travellers who disobey the 14-day quarantine rule. There may also be the possibility of prosecution.
In addition, if you travel to a non-exempt country, you will most likely be travelling without travel insurance as most insurance policies will exclude travel which is in contravention of FCDO guidance.
As a Travel Company, what are the risks should I choose to make holidays available in non-exempt countries?
If you are still able to provide holiday services in a non-exempt country, you should consider the following before you accept bookings:
- Insurance. Depending on the wording of your insurance policy, your public liability insurance may be partially or fully voided if you choose to provide services against FCDO guidance.
- Refunds. Under the Package Travel Regulations (the “PTRs”), travellers are entitled to cancel their holiday and obtain a full refund where unavoidable and extraordinary circumstances occur at the holiday destination (or the immediate vicinity) which significantly affects the holiday. Travellers may therefore, argue that any FCDO guidance advising against travel to a particular location should be considered an important indicator of the existence of “unavoidable and extraordinary” circumstances. Though the EU Commission seems to agree with this[4], the question can only truly be answered by the courts on a case-by-case basis.
- Duty of Care. Under common law, all consumers are owed a general “duty of care.” This duty is crystallised in the EU Package Travel Directive which provides that package organisers should provide assistance to travellers in difficulty without undue delay.[5] With this in mind, there is a risk that travellers may argue that you have breached the general duty of care in allowing them to travel against FCDO advice. Whether this is in fact the case, can only be determined by the courts should a matter of this nature arise. One way to guard against such liability is to obtain express, written and informed consent from each traveller, acknowledging that they are aware that they are travelling against FCDO guidance and that they accept any potential implications.
- Waivers. Are they something you can use to facilitate travel if travellers are still wanting to travel?
It is important that you obtain legal advice before providing holidays (in particular, packages) in non-exempted countries. For further information, please contact us here at Travlaw!
Milli Richardson is a South African Qualified Lawyer who is part of Travlaw’s Commercial and Corporate Governance Department. Feel free to reach out to Milli at milli@travlaw.co.uk or 01132 580033.
[1] R. (on the application of X) v Tower Hamlets LBC [2013] EWHC 480 (Admin); [2013] 3 All E.R. 157, para 35.
[2] https://www.gov.uk/guidance/about-foreign-commonwealth-development-office-travel-advice
[3] https://www.gov.uk/government/publications/coronavirus-covid-19-how-to-self-isolate-when-you-travel-to-the-uk/coronavirus-covid-19-how-to-self-isolate-when-you-travel-to-the-uk
[4] EU Commission, 19.03.2020, “Information on the Package Travel Directive in Connection with the Covid-19.”
[5] Preamble to directive (EU) 2015/2302 of the European Parliament and of the Council of 25 November 2015 on package travel and linked travel arrangements, amending Regulation (EC) No 2006/2004 and Directive 2011/83/EU of the European Parliament and of the Council and repealing Council Directive 90/314/EEC, para 37.
This article was originally published on: 1 October 2020
