We Finally Have the Green, Amber & Red Lists – What Now?

The government’s new ‘traffic light system’ has been much talked about in recent weeks.  On Friday, the government finally revealed the 12 countries that will be on the ‘green list’, and those that will be on amber or red. 

In this article we will look at what the latest developments mean for the industry and tackle some of the questions that have already been put to us.  But before we do that, a quick recap on exactly what the traffic light system is.

What is the traffic light system?

The new system will set out what rules will apply to travellers before and after returning to England.  Basically, it all depends on the colour assigned to each country, the key differences between each colour being:

  • Red – travellers will need to quarantine in a managed hotel on return to the UK (and pay for the privilege);
  • Amber – travellers will need to quarantine at home on return to the UK; and
  • Green – travellers will not need to quarantine on return to the UK, but they will need to produce a negative covid-19 test before they are allowed to travel back to the UK.

Those are the key differences only!  For more detail about exactly what is involved for each ‘colour’ of the traffic light system, please check out our previous article here.

Is it still illegal for people to travel from England to any of these countries?

Yes, but not for long! International travel for leisure purposes remains illegal in England for now; however, from the 17th of May onwards, it will no longer be illegal to travel abroad from England for leisure purposes.  This was confirmed by the Transport Secretary, Grant Shapps, on Friday 7th May.

In order to bring this into law, changes will need to be made to the relevant Regulations here.  Naturally, we will take a look at the updated legislation on 17th May to see exactly what changes are made – but we are not expecting any surprises!

What about the rest of the UK?

Unfortunately, this change applies to England only.  It will therefore still be illegal to leave Wales, Scotland and Northern Ireland in order to travel abroad for leisure purposes – for now. 

If you are not sure what to do in relation to bookings for customers resident in Wales or Scotland who are planning to travel to England in order to travel abroad – feel free to get in touch for further advice!

Can I operate holidays to ‘amber’ countries?

Yes. The government advice here states that travellers ‘should not travel to amber list countries for leisure purposes’.  This is ‘advisory only’.  After all, it has already been made clear by the government that it will no longer be illegal to leave England to go abroad for leisure purposes after 17th May.  As such, holidays to ‘amber countries’ can still proceed so long as:

  1. The travellers are able and willing to travel despite the ‘amber warning’, and
  2. You are still able and willing to provide the holiday.

That does, however, leave us with a few follow up questions as below.

What if my customers do not want to travel to an ‘amber’ country?

Where the FCDO advice against travel to that destination:

In this situation, your customers might be entitled to cancel and obtain a full refund but only if:

  1. The customer cancels before the trip departs; and
  2. The customer does not cancel ‘too soon’ – i.e. to get a refund it must be clear that there will FCDO advice against non-essential travel in place at the time of departure.  As a rule of thumb, we would suggest allowing such cancellation no sooner than 3 days before departure; and
  3. The FCDO advice is genuinely the reason that they do not want to travel (not a convenient excuse for someone who cannot or does not want to travel for other reasons!).

Otherwise, cancellation charges will apply as per your Terms & Conditions.

Where the FCDO do NOT advise against travel to that destination:

In this situation, your customers might be entitled to cancel and obtain a full refund if:

  1. There are circumstances at the holiday destination that significantly affect either your customer’s ability to travel to the holiday destination or your ability to perform the travel services; and
  2. The customer cancels before the trip departs; and
  3. The customer does not cancel ‘too soon’ – i.e. to get a refund it must be clear that the ‘circumstances at the destination’ in question here are in place at the time of departure.  As a rule of thumb, we would suggest allowing such cancellation no sooner than 3 days before departure; and
  4. The ‘circumstances at the destination’ in question here are genuinely the reason that they do not want to travel (not a convenient excuse for someone who cannot or does not want to travel for other reasons!).

Otherwise, cancellation charges will apply as per your Terms & Conditions.

The focus here will therefore very much be on point 1 above, for which you will need to consider what ‘entry restrictions’ are in place at the holiday destination at the time of departure. If customers are required to quarantine on arrival at the destination, although the point is arguable, we expect that they would be entitled to cancel with a full refund. However, we do not think that the need to produce PCR test results before or after travelling to the destination would trigger the right to a refund – as it does not ‘significantly affect carriage to the destination’.

So are you saying that FCDO advice always trumps the DfT advice?

Unfortunately nothing is ever that simple. There is an argument to say that, for the purpose of cancellations and refunds, an ‘amber light’ is equivalent to FCDO advice against non-essential travel. This is because the DfT advice currently states that ‘you should not travel to amber list countries for leisure purposes’. However, that is certainly an article for another day!

Can I operate holidays to ‘red’ countries’?

Yes, but ‘proceed with caution’. We will need to check the position on 17th May, but our expectation is that the FCDO will advise against non-essential travel to all of the countries that are on the red list.  If so, where does that leave us?  Well, if Spain is ‘red’, and the FCDO advise against travel to Spain, you are not obliged to cancel the holiday – but you will need to bear in mind the following:

  1. Refunds – customers might be entitled to cancel with a full refund if the FCDO advice is still in place at the time of departure;
  2. Insurance – your public liability insurance may be void for operating holidays against government advice (check the terms of your policy!)
  3. Risk waiver – you may well be advised to obtain written consent from your customers to acknowledge that they have decided to travel against government advice

If you are planning to operate holidays to destinations where the FCDO advise against non-essential travel, but are concerned about any of the above, please contact us to discuss further.

Is it straightforward to operate holidays to countries on the ‘green list’?

If only! Right now it would appear that many of the 12 countries on the ‘green list’ have one or more of the following ‘entry restrictions’:

  • No entry permitted for leisure purposes;
  • No guarantee of a VISA being issued or permission to enter being given;
  • Quarantine requirements on arrival;
  • PCR tests to be produced before travel to destination;
  • PCR tests to be produced on arrival to destination.

The UK government website has a lot of useful guidance on the entry requirements for each country.  An example of their understanding of the entry requirements for Portugal can be found here.

This is obviously important because customers might be entitled to cancel with a full refund in some of these situations.  If you need further advice on such scenarios, do not hesitate to contact our team for more information.

What Next?

We will be keeping our eyes peeled to see exactly what happens on 17th May.  In particular:

  • Whether the FCDO advise against travel to all of the countries on the ‘red’ and ‘amber’ lists;
  • To make sure that any criminal offence for leaving England for international travel is completely removed from the legislation.

In the meantime, if you have any queries about this article please get in touch with us using the details below.

If you have any questions about this article, contact Nick at

nick@travlaw.co.uk

or

0113 258 0033

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