Once Vaccinated, Twice Fly!

Portugal and Malta have recently announced that tourists travelling from the UK will need to have received two vaccinations in order to avoid an obligation to quarantine on arrival.  In this article one of our Senior Associates Nick Parkinson, looks at what these ‘double vaccination before entry’ rules mean for the travel industry in terms of customers seeking refunds.  We will start by looking at the position in relation to package holidays.

PACKAGE HOLIDAYS

Entry Requirements for Spain

Firstly, we should flag up that the current position adopted by Spain is less strict that that of Portugal and Malta.  In Spain, it is true that travellers can enter if they can prove that they have received both vaccinations.  However, the Spanish authorities will also accept entry to those able to present a negative covid-19 test (PCR, LAMP, TMA or antigen) taken within 48 hours before arriving in Spain.  In fact, they will also allow entry to people who have recovered from COVID-19 within 6 months.

It ought to be relatively straight forward for travellers to obtain a COVID-19 test and, consequently, this would not significantly affect the ability for customers to get to their holiday destination in Spain.  The current entry requirements in Spain are not therefore likely to trigger the right to a full customer refund.

Entry Requirements for Malta & Portugal

Unlike Spain, however, a negative COVID-19 test will not suffice for those travelling to Malta or Portugal.  Travellers will need to show that they have received their second vaccination at least 14 days before arrival.  Failing that, the traveller will be obliged to quarantine on arrival. 

What About Children?

Portugal and Malta have adopted slightly different rules for children.  Malta say that travellers under 12 years of age will be permitted to enter provided:

1. they are accompanied by parents or guardians who have had both doses;
2. for those aged between 5 and 11, evidence is provided of a negative PCR test (taken within the previous 72 hours of arrival).

Portugal, on the other hand, say that travellers under 18 will be permitted to enter provided:

1. they are accompanied by parents or guardians who have had both doses;
2. for those aged between 12 or over, evidence is provided of a negative PCR test (taken within the previous 72 hours of arrival).

Needless to say, this is a fast moving situation and these rules may change by the time you read this article!

Why Is The Double Vaccination Rule A Problem?

Inevitably any ‘double vaccination’ entry requirements will lead to tourists cancelling their holidays to destinations such as Portugal and Malta if they are unable to receive both of their vaccinations within 14 days of the date of departure. 

The first category of travellers to consider are those that have done everything they reasonably could have done to try and get vaccinated in time.  This will include:

• Younger age groups in the UK (who are typically allocated low priority on eligibility to receive vaccines)
• Families travelling to countries with the same rules currently in place in Malta, i.e. where the parents may have received both vaccinations in time, but not their children if they more than 12 years old;
• Those living outside of the UK where access to vaccines may be a lot more limited than the UK.

However, there will also be another category of travellers that could have had the vaccines in time, but have chosen not to.  That might be for a number of reasons:  health reasons, political or religious beliefs, or even tardiness!

Are Customers Entitled To Refunds?

Tour operators will have good grounds to reject refunds where:

1. The traveller does not cancel the booking before the start of the package;
2. The traveller cancels the booking ‘too soon’. Any cancellations more than 3 days before departure may well be ‘too soon’ because, until then, it is always possible that the entry requirements may change.
3. The traveller has not done everything they reasonably could have done to receive both vaccines within 14 days of departure.

To consider the third point above, tour operators may want to look closely at:

1. The age of the traveller. This is because priority for vaccine eligibility is typically given to older age groups;
2. The occupation of the traveller. This is because key workers, irrespective of age, will have been eligible for vaccines in the early days of the UK’s vaccination program.

Making such enquiries should of course be treated with some caution, as some travellers may find these type of questions intrusive.

What If The Traveller ‘Ticks All The Boxes’?

Inevitably some travellers will cancel their trip within 3 days of departure, having done all they reasonably could to receive both vaccinations in time.  However, even if travellers ‘tick all these boxes’, it is still open to tour operators to argue that there is still no entitlement to a refund under the Package Travel Regulations (‘the Regulations’).  

The arguments are technical.  The Regulations state that customers are entitled to cancel with a full refund if there are extraordinary circumstances at the place of destination that significantly affect either:

1. a) the performance of the package; or
2. b) the carriage of the passenger to the destination.

In response, tour operators may consider presenting the argument that:

1. The provision of travel services are not affected by ‘entry requirements’;
2. There is no FCDO advice against travel (assuming that is correct);
3. Carriage itself, i.e. ‘a passenger being conveyed by transport’, to the destination is not affected by entry requirements;
4. The situation is more comparable to ‘health requirements’ before entering a country. Various countries having had entry requirements in relation to these long before the covid-19 pandemic;
5. Any change in ‘entry requirements’ will not amount to a ‘significant change’ by the tour operator to the terms of the package. This is because ‘visa and health requirements’ do not fall under the ‘main characteristics of the travel services’, i.e. one of the 10 characteristics that tour operators are unable to change without the traveller’s permission.

What If The Parents Can Travel But Not The Children?

Based on the current rules for Malta, all travellers must be double vaccinated – with an exception for children under 12 years old.  This therefore begs the question as to whether customers can cancel a booking for the entire family, and receive a full refund, where the parents have been double vaccinated, but not any children travelling who are over 12 years old?

In short, the answer is probably yes, the family most likely can cancel the entire trip and claim a full refund – but subject to the various criteria and arguments that we have already set out above.  After all, trying to convince a Judge that the parents are still able to travel and could just ‘leave the kids at home’ probably isn’t a good idea for PR reasons, let alone legal reasons!

NON PACKAGES

The legal position above sets out the position in relation to package holidays that customers cancel because they have not been double vaccinated in time.  But what about those who book holidays that they have organised themselves, and then try to seek refunds from any airlines, hotels etc that they have booked with?

Tour operators should anticipate that some customers will be looking closely at:

1. Their Terms & Conditions (including any COVID-promise or guarantee);
2. Whether any clauses that they intend to rely on are ‘fair’ such that they might fall foul of the Consumer Rights Act; and
3. Arguments as to whether the contract has been ‘frustrated’. A complex issue and not one to explain for the purpose of this article!

That said, generally speaking, it will be extremely difficult for customers to obtain a refund in relation to any travel services cancelled in these scenarios. This would be a matter for the customer’s travel insurance provider!

Test Cases to Follow?

It is fair to say that bringing or defending claims in these type of scenarios enters unchartered territory. However, this is not an isolated issue in that the COVID-19 pandemic has really tested the limits of the Regulations.  This will not therefore be the first, or the last, novel issue that the courts may find themselves grappling with during the fallout of the pandemic.

This article was originally published on: 1 July 2021