R Manchester Airports Holdings Ltd v Secretary of State for Transport
| Jurisdiction | England & Wales |
| Judge | Lord Justice Lewis,Mr Justice Swift |
| Judgment Date | 20 July 2021 |
| Neutral Citation | [2021] EWHC 2031 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2105/2021 |
and
and
[2021] EWHC 2031 (Admin)
Lord Justice Lewis AND Mr Justice Swift
Case No: CO/2105/2021
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Tom Hickman QC & Tom Leary (instructed by Hogan Lovells Solicitors) for the Claimant
David Blundell QC & Julia Smyth & Yaaser Vanderman (instructed by Government Legal Department) for the Defendants
Nicolas Damnjanovic (instructed by Stephenson Harwood LLP) for the First Interested Party
The remaining Interested Parties did not attend. The Intervener had permission to intervene only to the extent of filing written evidence.
Hearing date: 9 July 2021
Approved Judgment
Lord Justice Lewis and
A. Introduction
This challenge arises from amendments made by the Health Protection (Coronavirus, International Travel and Operator Liability) (England) (Amendment) (No. 2) Regulations 2021 to the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 (“the Amendment Regulations” and the “International Travel Regulations”, respectively). The International Travel Regulations are the latest instalment of restrictions affecting travel outside England, and persons arriving in England from abroad, imposed to reduce the risk of transmission of Covid-19. Various restrictions on international travel, taking various forms, have applied since June 2020.
The International Travel Regulations were made on 14 May 2021 and came into effect on 17 May 2021. They established a so-called traffic light system of restrictions on persons entering England from countries outside the common travel area (as defined by section 1(4) of the Immigration Act 1971, i.e., the United Kingdom, the Channel Islands, the Isle of Man and the Republic of Ireland). The system places countries outside the common travel area in one of three categories: each category is contained in a Schedule to the Regulations. Different restrictions apply to each category. The categories are referred to colloquially as the green, amber and red lists. In this judgment we will refer to these lists collectively as “the traffic light lists”. The Claimant's challenge (which comes before us as a rolled-up hearing) was prompted by decisions announced by the First Defendant (“the Secretary of State”) on 3 June 2021 which were then put into effect by the Amendment Regulations. The Amendment Regulations were made on 6 June 2021, laid before Parliament on 7 June 2021 and came into force on 8 June 2021. Among other matters, they amended the Schedules to the International Travel Regulations, with the consequence that Portugal ceased to be on the (Category 1/Schedule 1) green list (falling by default into the (Category 2/Schedule 2) amber list), and each of Afghanistan, Bahrain, Costa Rica, Egypt, Sri Lanka, Sudan and Trinidad and Tobago was added to the (Category 3/Schedule 3) red list (each had previously been on the amber list). The primary thrust of the Claimant's challenge is that these decisions were taken without proper reasons being given and without proper notice of the criteria applied when deciding that countries should move from one list to another. The Claimant also raises an issue as to the meaning and effect of regulation 24 of the International Travel Regulations, a provision that requires the Secretary of State periodically to review the requirements imposed by the Regulations.
(1) The International Travel Regulations
The International Travel Regulations were made pursuant to powers in the Public Health (Control of Disease) Act 1984 (“the 1984 Act”). By section 45B(1) of the 1984 Act the Secretary of State has power to make regulations “… for preventing danger to public health from vessels, aircraft, trains or other conveyances arriving at any place …”. The power to make regulations under the 1984 Act is exercisable by statutory instrument: see section 45P(1). Sections 45Q and 45R of the 1984 Act prescribe the parliamentary procedures required to make regulations under the 1984 Act. Each of the International Travel Regulations and the Amendment Regulations was made under the negative resolution procedure.
The International Travel Regulations were preceded by a report produced in April 2021 by the Global Travel Taskforce: “The Safe Return of International Travel”. The Taskforce is a cross-governmental body, convened in February 2021 by the Secretary of State at the request of the Prime Minister with terms of reference to report “… with recommendations aimed at facilitating a return to international travel as soon as possible, while still managing the risk from imported cases and variants of concern”. The Government's stated intention was that following delivery of this report it would decide when international travel should resume.
International travel has been severely disrupted by the Covid-19 pandemic and during the past 15 months has been affected by various restrictions contained in regulations made under the 1984 Act. Restrictions requiring persons entering England to self-isolate were first put in place in June 2020, and, in one form or another, have remained in force since. In addition, measures in place have included bans on direct flights between some countries and England and bans on entry affecting the nationals of specific countries, and restrictions on persons in England preventing them (absent good reason) from leaving to travel to destinations outside the United Kingdom.
The Taskforce's report included the following:
“19. The overarching principle is for a clear and evidence-based approach to facilitate the safe, sustainable and robust return of international travel while managing the risks from imported cases and Variants of Concern. The health risk posed by arrivals from different countries varies considerably and is likely to change over time as infection rates fluctuate, Variants of Concern are identified, and vaccine programmes are rolled out, so the principles of a risk– based approach has received consistent support throughout the GTT's engagement across government, and with the transport industry, academics, and trade unions.
…
22. To respond to the new context, we will launch a new approach for England from 17 May at the earliest, for all countries, to which different restrictions are applied depending on risk. This risk will likely be based on factors such as the level of community transmission of Variants of Concern, levels of testing, genomic sequencing and reporting. This will allow the UK government the flexibility to adapt to the evolving health situation around the world while keeping borders open.
• Red countries: High-risk countries (currently known as “red list”)
• Amber countries: Moderate-risk countries.
• Green countries: Low-risk countries.
23. The allocation of countries will be kept under review and respond to emerging evidence, with a particular focus on Variants of Concern. The Joint Biosecurity Centre will publish data and analysis to support the process of allocating countries. Allocations will inevitably change …”
The International Travel Regulations concern travel to England by persons coming from outside the common travel area. The Regulations put in place a series of requirements for travellers to provide information; in certain circumstances to be tested to determine whether they are infected with coronavirus; and to undertake periods of quarantine referred to in the Regulations as a requirement to self-isolate (see regulation 9). The self-isolation requirement applies to persons who arrive from, or who recently prior to arriving in England have spent time in, countries falling within either Category 2 (at Schedule 2 to the Regulations – the amber list) or Category 3 (at Schedule 3 to the Regulations – the red list). Schedule 1 to the Regulations lists the Category 1 countries which are referred to as green list countries. Category 1 and Category 3 countries are identified by name in each of the respective Schedules. Category 2 countries comprise all other countries, i.e., any country not named in either Category 1 or Category 3.
Under the International Travel Regulations as originally made, persons arriving from or arriving having recently been in amber list countries are required to self-isolate for 10 days. The period of self-isolation reduces to 5 days if the person concerned tests negative for coronavirus after a set period of time: see Schedule 8 paragraph 4, and Schedule 10 paragraph 5. Regulation 9 makes detailed provision about the place of self-isolation. However, in most instances, persons arriving from amber list countries will self-isolate at their home address. Schedule 11 to the International Travel Regulations makes further provision for those entering England from or after recently being in red list countries. Such persons may only enter England by certain airports, and they must have arranged a “managed self-isolation package” comprising accommodation at a place designated by the Secretary of State, transport to that place, and a testing package (i.e., arrangements to be tested for coronavirus infection).
Regulation 24 of the International Travel Regulations which is the subject of Ground 1...
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