In-destination and return information
The following article was written by Farina Azam – Partner of ABTA Partner Deloitte Legal for the spring edition of Travel Law Today, which can be downloaded here. Farina will also be speaking at the upcoming virtual Travel Law Seminar discussing 'contracting essentials for trading with the EU' on 19 May 2021, visit abta.com/abtaevents to find out more and register. Early bird discounts are available until 7 May.
As I write this article, all international arrivals to the UK must have negative COVID-19 PCR tests, complete a Passenger Locator Form and quarantine for ten days (whether at home or in a hotel, depending on the destination). There’s still a blanket FCDO advisory against non-essential international travel, as well as local guidance in place in the UK, meaning you can’t travel far and if you do travel internationally, you require a travel declaration form.
As we look to re-open borders and eventually recommence international travel for leisure purposes, it’s inevitable that we will be living with some form of travel restrictions for many years to come, as a result of the pandemic. So, who’s responsible for informing customers of these restrictions, and what happens if incorrect information is given to the customer?
It’s likely international travel will remain subject to testing requirements for some time to come, whether that’s on entry to the destination or return to the UK (at least for those travellers who have not been fully vaccinated). Compliance with a country’s entry requirements are the responsibility of the traveller and this would be written into the tour operator’s and travel provider’s contract terms and conditions. However, there are certain legal obligations around notifying the customer about these requirements, and even responsibility for checking compliance in some instances, which travel companies need to be aware of.
Where packages are concerned, the Package Travel and Linked Travel Arrangements Regulations 2018 (PTR) place a requirement on package organisers to provide “general information on passport and visa requirements, including approximate periods for obtaining visas and information on health formalities, of the country of destination”, to the customer prior to concluding a booking contract with the customer. As such, package organisers are under a legal obligation to inform the customer of any “health formalities” applicable at the destination, and this would include the requirement for a negative COVID-19 test result upon entry to the destination, as well as any requirement to quarantine in-destination. This information should be as detailed as possible and include the type of test required by the destination, the time periods applicable to the test result and the consequences for the traveller of non-compliance.
In relation to the requirement for a negative test upon return to the UK, the UK government has implemented legislation which places an obligation on transport operators such as airlines, ferry companies and train operators to check every passenger’s negative COVID-19 test certificate and their completed Passenger Locator Form, prior to boarding. As such, these carriers will need to ensure that these entry requirements are notified to the passenger in good time, to allow them to comply. Again, this information should include the type of test required by the UK, the time periods applicable to the test result and the consequences for the passenger of non-compliance. It’s also worth noting the recent legislation implemented by the government requiring transport providers to inform customers that non-essential travel is not permitted during a lockdown, to be provided at least 24 hours prior to departure. Whilst this legislation only applies to transport providers, these information obligations could be passed onto tour operators and travel agents via their contracts with transport providers. Failure to provide this information to the customer would therefore be a breach of contract by the tour operator/travel agent. Furthermore, tour operators/travel agents may be in breach of their duty of care and/or failing to provide information for the customer to make an informed decision.
Turning to the holiday experience in resort, again, it’s likely that certain health measures will remain in force for some time to come, including social distancing, limited use of certain facilities, and the use of face masks in public areas. There is an argument that since these measures are to protect public health due to the COVID-19 pandemic, they fall within the requirement to inform the customer about any “health formalities” at the destination. In any event, customers should be advised about any such issues which may affect their holiday irrespective of whether the measures will have a material or minor impact on the customer’s holiday, and customers should be informed of this prior to booking.
Where such measures have been implemented after the customer has booked, or where such measures are changed or tightened after booking, the customer should be informed of the changes as soon as possible. Only where such changes would be considered a “significant” change to the customer’s holiday would the customer be entitled to cancel their holiday. It’s unlikely that social restrictions or mandatory use of face masks would be considered a “significant” change to the customer’s holiday, but it would depend on the individual circumstances.
Since the obligation to comply with entry requirements remains the traveller’s responsibility, travellers must take personal responsibility and ensure they’re informed and understand the entry requirements for international travel to their chosen destination and subsequent return to the UK. However, where travel companies have a legal obligation to inform travellers, a failure to provide the information, or a failure to provide accurate information to travellers, would not only be a breach of the PTR or the Coronavirus legislation (where applicable), but travel companies may also find themselves liable for losses incurred by the customer as a result, where the customer can show they reasonably relied on the information provided by the travel company, causing them a loss.
Legal obligations aside, one of the cornerstones of a successful restart of international leisure travel will be to ensure customers feel comfortable enough to travel overseas – and ensuring they’re fully informed about testing and other border requirements, as well as any in-resort measures which may affect their holiday experience, will ensure they understand what to expect from their holidays in a post-pandemic world.