International travel Green-Amber-Red list system found lawful by High Court

In a judgment handed down today, the Divisional Court (Lewis LJ and Swift J) has found the process by which countries are allocated to the Green, Amber or Red list for the purpose of international travel lawful. On 17 May 2021, the Health Protection (Coronavirus, International Travel and Operator Liability) (England) Regulations 2021 came into force, introducing the traffic-light system of international travel. Under the traffic-light system, Ministers decide which countries would be on the Green, Amber and Red lists. Individuals arriving from Amber list countries must, amongst other things, self-isolate for a period of 10 days. That requirement does not apply to individuals arriving from Green list countries. On 17 May 2021, Portugal was one of a number of countries placed on the Green list. On 3 June 2021, Portugal was moved from the Green to the Amber list. No other countries were moved to the Green List. On 24 June 2021, a number of countries, including Malta, the Balearic Islands and several Caribbean islands, were moved from the Amber list to the Green list. Manchester Airport Holdings, which owns Manchester Airport, Stanstead Airport and East Midlands Airport, brought proceedings on 17 June 2021 in relation to the traffic-light system against the Secretary of State for Transport and the Secretary of State for Health and Social Care. A number of other parties have also joined the proceedings, including Ryanair DAC, IAG, Virgin Atlantic, TUI and Easyjet. They challenged the decision-making process that leads to countries being moved to or kept on the Green / Amber lists. Rather than being a transparent process, it was argued that these decisions are opaque, leading to those in the air travel industry not being able to plan for the critical summer period. In particular, it was argued that the failure to publish all / any data, assessments and scientific advice informing the country-allocation decisions amounts to a breach of: (a) the common law duty of fairness or transparency and to give reasons; (b) a legitimate expectation induced by a statement made by the Secretary of State for Transport that such data would be provided; and, (c) Article 1 of the First Protocol ECHR. An expedited rolled-up hearing of the claim took place on Friday 9 July 2021. In its judgment handed down today, the Court granted permission to the Claimant but dismissed its substantive grounds on the bases that: (a) no reasons or further information were required in this case in circumstances where the legislative scheme for making secondary legislation did not require this. In any event, sufficient reasons were given for placing Portugal back on the Amber list. There was also no freestanding common law duty of transparency; (b) the Secretary of State did not make a representation capable of founding a claim to a legitimate expectation; (c) the Claimant failed to provide evidence showing that the changes to the traffic-light lists affected its property, as required by A1P1 ECHR, and those changes satisfied the “provided by law” requirement in any event. For press reports, see the BBC and the Financial Times. David Blundell QCJulia Smyth and Yaaser Vanderman were instructed on behalf of the Secretary of State for Transport and the Secretary of State for Health and Social Care.

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