In response to the COVID-19 pandemic, many countries have enacted additional border and entry controls to minimise the spread of the virus. The Westminster government has put in place its own limitations to those coming into England and Wales. This article will look at these limitations, specifically compulsory hotel quarantine, and assess whether this current policy can directly or indirectly lead to a breach of one’s human rights. Please note that the Scottish government has separate limitations from Westminster which are beyond the remits of this article.
Context
On 9 February 2021, the Secretary of State for Health and Social Care announced the new hotel quarantine system. The Health Protection (Coronavirus, International Travel) Regulations 2021 (the “Hotel Quarantine Regulations”) were brought before Parliament and came into force on 15 February 2021. These regulations were made with the authority granted by the Public Health Act 1984 which allows ministers to perform actions as necessary to limit the spread of disease and permits quarantine as a method to do so. It also permits charges to be levied in association, although no amount is specified in the regulations.
To accommodate the flow of people into the United Kingdom, the government has categorised countries into lists of either red, amber, or green. The colours correlate to the risk level of incoming travellers from these countries, based on the activity of the virus in that country. The lists and controls change frequently but as of 24 May, the government website states that people entering the UK immediately from a country on the "red list" need to quarantine at a hotel for 10 days before proceeding with their journey. Passengers entering from a country on the amber list also need to quarantine for 10 days but are not required to stay at a hotel and have the option to do so at home or the place in which they are staying. Passengers arriving from a country on the green list do not need to quarantine at all unless a result from the compulsory COVID-19 tests upon arrival proves positive. All passengers from all countries undertake several mandatory COVID-19 tests.
Persons from a red list country must have booked a “managed self-isolation package” that includes transport, quarantine hotel, and COVID-19 testing package. The package costs GBP 1,750, as listed in the charging policy. Any person receiving a positive result from their day two COVID-19 test must pay an additional GBP 304 for a further two nights of stay and those receiving a positive result from their day eight test must pay an additional GBP 1,216 for a further eight nights. However, a policy entitled “Managed quarantine: what to expect” published by the government on 14 February 2021 further provides that such travellers will not be allowed to leave quarantine until they no longer show any COVID-19 symptoms, meaning that there could be no maximum limit on the quarantine stay. Although the charges to quarantine are permitted in the charging policy mentioned above, and the Public Health Act 1984, they contradict the UK's international obligations as a signatory and member state to the World Health Organisation, as will be discussed later.
Reports of Conditions in the Hotels
Recent articles from national newspapers colourfully depict the nightmarish circumstances travellers are faced with during their quarantine period. Reports include accounts of prison-like scenarios where guests, paying a set fee of GBP 1750 per adult for the quarantine period, were given the same food 10 days in a row, allowed 15 minutes of fresh air a day, and found they needed to wash their own laundry in the bathroom sinks.
In response to accounts such as these, a government spokesperson said:
“Our top priority has always been protecting the public and our robust border regime is helping minimise the risk of new variants coming into the UK. The government continues to ensure every person in quarantine gets the support they need and all managed quarantine facilities are accommodating the vast majority of people’s requirements. Hotels do their utmost to take any necessary steps to address concerns raised by guests".
To investigate this phenomenon further, I joined a Facebook Group called "UK Hotel Quarantine Support Chat" and asked if there was anyone present who would like to talk to me about their experience. I was able to speak to several people and many also participated in an online survey I created. The responses were mixed, with both reports of warm food prepared on time and freezing cold food, inadequate proportions and delays, reports of quick travel times to the hotel and one report of someone waiting while standing for 7 hours to go through immigration. The majority of reports say the food is inedible and that the overall experience was negative, even traumatic, especially from respondents with young children. Only one person, when asked, felt that their human rights had not been violated during the experience.
However, this single sample is not completely representative of the experience of the many thousands of people who have quarantined in the UK coming from "red" countries. This is partly because the usual safeguards that make a piece of research reliable are not in place (such as a control group and translators if required) but also because there are many whose quarantine experience has been positive but who seem to have not participated in the survey. Therefore, it is important to determine not if the UK hotel quarantine system is a breach of human rights in itself but whether it can potentially breach rights by failing to employ safeguards to positively reinforce rights and freedoms, as the government’s obligation to do.
UK Government's Legal Obligations
There is a consumer expectation for a standard of service and provision when paying gbp 1750. It is clear from reading the newspaper reports and from speaking to individuals who have experienced mandated hotel quarantines that these standards were very often not met. This neglect was felt especially with regards to dietary restrictions and the needs of children, prompting the question of when a mere inconvenience turns into a human rights issue.
Both residents and visitors to the UK can expect to benefit from the provision of the Human Rights Act 1998. This is a statute that obliges the government and public bodies to behave in a certain way, protecting individuals from misuse of power, poor decision making, and harmful or arbitrary behaviour from public bodies and officials acting on behalf of public bodies. The HRA encompasses many rights of which several can be considered when looking at the hotel quarantine system’s potential human rights violations.
Many of the rights upheld in the European Convention of Human Rights (ECHR) are copied and pasted into the UK’s HRA, giving them effect in the UK, incorporating international law into domestic legislation without compromising parliamentary sovereignty. One law firm has commented that the hotel quarantine system is likely a breach of Article 5, concerning the deprivation of liberty. A limitation to Article 5 does include detention or quarantine to limit the spread of a disease but the firm comments that many people are being held in quarantine who are not infected, as shown by negative test results, and others are disproportionately affected, such as young children. The same law firm has since been instructed to act against the UK government in a civil litigation case considering human rights abuses, and promoting judicial review to evaluate the government’s actions, decisions, and litigation around hotel quarantine.
It is worth considering the nature of the HRA, regarding its intentions and the "spirit" behind the Act. The Act is deliberately vague, allowing for wide protection of human rights. The Act places both negative and positive obligations on public bodies to both refrain from certain behaviours, but also to take steps to actively promote the enjoyment of rights. This is a positive obligation. It may be the hotels themselves in this situation that are not performing to standard but the government does have a positive obligation to ensure that the hotels it authorises as quarantine centres also take action to promote the fulfilment and enjoyment of all relevant human rights, including the right to liberty. The government policy itself utilises a “one size fits all” approach for all incoming passengers from red countries, which in itself can be held responsible for the potential breaches of Article 5.
Article 8 of the HRA offers protection for people’s private and family life without any undue interference by public authorities. The prevalence of a pandemic is a valid and legal reason to temporarily reduce certain rights and in many instances, the interference on family and private life during the pandemic has been proportional. The imposition of the charges set by the government are for many unaffordable, and prohibitive. For those unable to pay, such as those on incom-related benefits or not in employment, exemptions would be welcome but are non-existent (beyond an offer in the charging policy for those who get in debt because of the payment to reimburse the government over 12 months). The effect of the charges can reach to be an imposition of Article 8 by preventing or making it difficult for family units to be together. It may obstruct others from exercising their right of residency in the UK - a fixed statutory right under the Immigration Act 1971.
The hotel quarantine system may also disproportionately affect a specific group, such as children or people with a disability. Any restriction must be compatible with both the HRA as previously mentioned and also the Equality Act 2010, and the government will need to consider whether a less restrictive measure could be effective.
There are other legal obligations to take into account when considering the UK hotel quarantine system. The UK is a member state of the World Health Organisation (WHO), a global health institution and regulatory body. As a member state, the UK is legally obliged to abide by the WHO’s International Health Regulations (IHR), in which Article 40 states that member countries cannot impose a charge on travellers who must quarantine. Therefore, it follows that the government’s charging policy for a “managed self-isolation package” is contrary to the IHR and a breach of the UK’s international obligations.
In addition to the forced, fixed-rate costs of quarantine that are imposed on each traveller coming into the UK from a red list country, the UK also imposes a fine of GBP 10,000 (maximum) and a prison sentence of up to 10 years on people who do not reveal their origin as a red list country when it has been so. This brings into question other issues surrounding human rights, such as proportionality of penalties and rationality.
Conclusion
The UK must take responsibility for the actions and omissions of some of the hotels authorised for periods of quarantine and of the breaches of human rights caused by the quarantine package and charging policy. It may not be clear yet if inadequate dietary requirements or cold food constitute a human rights breach but this should be defined and rectified before it meets with a court to decide on its compatibility with the HRA. The government’s “one size fits all” response to families, people with disabilities, grieving relatives, and families with young children should be immediately addressed. The requirements of people safely quarantining substantially differ and their various needs and financial situations should be accommodated. People testing negative for COVID-19 should not need to quarantine, in line with limitations for Article 5 of the HRA. Furthermore, the price of quarantining should be removed, as per the UK’s international obligations in line with its pledge to the WHO Regulations. As per the government's obligations under the Equality Act 2010 and the HRA 1998 the government should also detail how it will change the hotel system to accommodate disproportionately affected groups such as children.