International travel arrangements - impact on the travel industry

This article was authored by Jonah Kelly, Legal Apprentice, London office.

As the vaccination effort gains momentum, UK Government ministers are already setting targets for overseas travel. To date, over 30 million people in the UK have received the first dose of the vaccination resulting in calls for a ‘vaccine passport’ (or ‘COVID health certificate’), among others, to be implemented giving the travel industry a chance to begin its recovery process.

The ‘vaccine passports’ would permit those who have received the second dose to travel abroad on a large scale for the first time since the start of the pandemic. Those who are fully inoculated will receive a vaccination card as verification and the details will also go on their medical records.

UK strategy

The UK Prime Minister will rely on the Global Travel Taskforce to provide a roadmap detailing how and when overseas travel can return. Further information is expected to be released before 17 May 2021 but one scheme that appears set to come in will see the re-introduction of the ‘traffic light system’. Similar to last summer, the ‘traffic light system’ will categorise countries as being either risky ‘red’ destinations, where infection rates are high, or those deemed to be safer ‘green’ countries due to higher vaccination rates. Those visiting ‘amber’ countries will have to self-isolate at home for 10 days and are required to take three tests. It is thought that this will replace the ‘quarantine hotels’ that were previously used.

Under this ‘green watch-list’ countries will be categorised based on existing travel restrictions and overall risk. The main factors for assessment are:

Percentage of the population that have been vaccinated;
Rate of infection, specifically that of community transmission;
Prevalence of variants of concern; and
The country’s access to reliable scientific data and genomic sequencing.

The table below indicates the current conditions of the ‘traffic light system’:

It is believed that the ‘traffic light system’ will operate concurrently alongside other rules that would require holidaymakers to complete forms, take COVID-19 tests before and after travelling, and self-isolate upon their return. In addition to these measures, the UK Government has also supported the idea of the ‘vaccine passport’ and it has been suggested that this could come into effect before the summer tourist season. Despite finalising the details and certifying any travel plans, the UK Government has confirmed that “people are free to book holidays abroad in the summer, but for the moment the Government must advise that until the picture is clearer there is a continuing risk of disappointment”.

EU strategy

The EU has already announced plans for a ‘vaccine passport’ in the form of a Digital Green Certificate. The certificate will be freely available to those who have received the vaccination and will include a QR code containing the relevant information. However, European infection rates have spiked again forcing Governments to impose widespread travel restrictions and further lockdown measures. Spain - the most popular destination for UK travellers – is one such country where action has been taken to limit travel in order to curb the spread of the infection. Elsewhere, other popular destinations in Europe such as Cyprus and Turkey are being treated as “open” countries. Greece for example has said it will welcome UK tourists who have received the vaccine from as early as 14 May.

Implications for the travel industry

In general, it seems that key stakeholders in the travel industry are on board with the idea of ‘vaccine passports’. The majority of travel operators believe that the ‘COVID health certificate’ will be an important basis for summer travel but maintain that testing is another vital factor in planning for the upcoming holiday season. Other travel operators, mostly cruise companies, are taking a more stringent approach to the idea, with some suggesting that they will not welcome customers without a ‘vaccine passport’.

Considering the legal angle, it remains unclear what position travel companies will be left in with regard to liability, should one of their customers contract COVID-19 whilst on holiday. Despite current uncertainty, there is a possibility that travel companies could face a wave of claims from customers who will assert that they contracted the virus following alleged failings by their tour operator.

However, restricting the exercise of personal freedoms or access to services could be challenged at court.

Concerns over the ‘vaccine passport’

While the ‘vaccine passport’ scheme has the backing of the UK Government, the following issues have been raised against such a scheme:

Privacy and data security – a reported increased number of cyber-attacks which have highlighted the need for added protection when handling data, particularly when pertaining to sensitive medical information.
Efficacy – whilst those who receive the vaccination are immunised there are concerns that they are still culpable for being able to spread the virus and thereby endangering others, according to the CDC.
Exclusion and discrimination – to date the vaccine has mainly been administered to people aged 50 and above. This inevitably means that by the time proposals for overseas travel come into effect the older age groups of the population will be able to go abroad. An online petition urging the UK Government to reconsider ‘vaccine passports’ says that the scheme would also restrict the rights of people who have refused the vaccine.
Logistics and fraud – organising and coordinating a ‘vaccine passport’ scheme will be no small undertaking and will come at considerable financial cost with no clarity on who will bear the price burden. This has resulted in concerns that implementing the idea is not feasible. Although with suggestions of QR codes, facial recognition, and certificates built into apps (akin to the NHS test and trace app), it is possible to allay logistical apprehensions.

Comment

Moving forward, it seems crucial to develop an international standard when it comes to testing and certifying vaccinations. The World Health Organisation is currently working on creating an international vaccination certificate but no standards have yet emerged. This vacuum has led to independent governments and companies developing their own systems which could generate friction between countries with a low prevalence of the virus and those where it is higher.

It is clear that the ramifications of the pandemic will linger around the travel industry for some time, particularly as countries oscillate between varying lockdown restrictions. An increase in infections has resulted in a third wave across Europe which could deter people from travelling abroad this year. However, a recent surge in holiday bookings to European countries bodes well for the industry which has arguably been one of the sectors hit the hardest by the pandemic.