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Judicial Review to determine whether England's quarantine hotel policy is an "unlawful deprivation of liberty"

Current Government policy is that everyone who arrives into England and has been in a red list country in the 10 days before they arrive must quarantine in a managed hotel for 10 full days from the point of their arrival. There are some limited exceptions. For example: 

  1. NHS staff may be able to quarantine in NHS approved accommodation and boarding school students may be able to quarantine at their boarding school; 
  2. Certain jobs (eg aircraft crew who are UK resident) do not need to quarantine; and
  3. It is possible to obtain an exemption on medical or compassionate grounds.   

For those without an exemption, today, the cost of staying in a mandatory hotel quarantine increased from £1,750 to £2,285. 

This has sparked a Judicial Review letter before claim on the grounds that the policy amounts to an "unlawful deprivation of liberty" and a breach of fundamental human rights. 

The key point is that, whilst double vaccinated arrivals from amber list countries do not have to quarantine unless they test positive on day 2 of their return, and unvaccinated arrivals from amber list countries can end their self-isolation if they test negative on day 5 of their return, double vaccinated arrivals from red list countries are required to quarantine for 10 days irrespective of when and how many times they test negative. That, the Judicial Review will argue, is arbitrary, unnecessary and disproportionate.

The Judicial Review is seeking not only compensation for those who have had to quarantine under this policy for breach of their rights but refunds for those who have paid the fee to quarantine. 

As well as the interesting legal questions that it raises, this Judicial Review highlights two of the ongoing themes that are framing socio-political and economic discussions as we look to emerge from the teeth of the pandemic. It touches on:

  • Parliamentary scrutiny of policy: The period from announcement to enactment of the policy was 6 days. It was put before Parliament on 12 February and came into force on 15 February. The arguments about the necessity to act quickly versus the importance of not undermining Parliament's scrutiny function are well rehearsed but they apply in this context. An example of the type of issue that might have been dealt with at the parliamentary review stage was the need for a Judicial Review in order to persuade the government to permit arrivals suffering financial hardship to spread the costs of quarantine over 12 months.

  • The UK's place in Europe: The Government's position is that:

    "Every essential check we've introduced has strengthened our defences against the risk of new coronavirus variants. Countries around the world are taking equivalent action and apply a fixed charge for quarantine costs. The cost for travelling back from a red list country covers transport from the port of arrival to the designated hotel, food, accommodation, security, other essential services and testing."

    Few would argue that the Government faces a challenging task in balancing the need to monitor for potential new variants that could damage the country's recovery from the pandemic with the desire to see life returning to normal. That said, policies do need to adapt to changing times. Only Norway and Ireland (out of the  other EU countries) have mandatory quarantine policies and both of these have recently been amended to reflect the fact that those who are double vaccinated do not need to quarantine.

It would be surprising if this matter proceeded to a substantive hearing. Much will depend on the Government's willingness to "go it alone" in maintaining its stance that double vaccinated arrivals need to quarantine.  

It seems more likely that the Government will explore whether there is a suitable compromise that may bring the policy into line with the other European countries. It is worth noting that, in the previous judicial review challenge regarding financial hardship referred to above, the judicial review sought an exemption for the requirement to quarantine. Instead of an exemption, the Government agreed a 12 month staged payment process for payment of the fees to achieve the same aim (not to preclude low income arrivals from being able to comply with the policy).  

A law firm representing travellers is challenging the UK's quarantine hotel policy and seeking a judicial review.

Currently, passengers must spend 11 nights in quarantine hotels on returning from red list countries, despite being fully vaccinated and testing negative for Covid.

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