‘Nothing is being ruled out’ in relation to tightening incoming travel rules

Introduction of mandatory quarantine would likely survive constitutional challenge

Between the start of December 2020 and January 11th this year over 190,000 people arrived into Ireland by air.  Photograph: Getty Images

Between the start of December 2020 and January 11th this year over 190,000 people arrived into Ireland by air. Photograph: Getty Images

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The Government is coming under increasing pressure to introduce tougher restrictions on inward bound travellers after the State’s public health team said pre-flight tests were not enough.

There are also growing concerns around the spread of new variants of Covid-19 through travel as figures show that more than 3,000 people from South Africa and Brazil flew into Ireland over a five-week period.

Variants of Covid-19 that originated in the UK (known as B117) and South Africa (B1351) have been found in the Republic. Variants originating in Brazil (P1) have not yet been detected in Ireland.

Government Ministers will consider proposals to introduce mandatory quarantine for passengers arriving in the State who do not have a valid PCR test showing they are Covid negative.

A new system started this month required the production of a negative PCR test result taken within 72 hours of arriving in an Irish port or airport. However, while failure to produce the test result is a criminal offence – with a maximum €2,500 fine – gardaí do not have the power to stop the person from continuing their journey into Ireland.

In the first week of its operation 80 passengers were cautioned before being allowed to continue their journey into the State.

A Government source said “nothing is being ruled out,” in relating to tightening the rules on incoming travel.

Among the options being explored are new regulations that will require a passenger without a PCR to go into compulsory quarantine in a designated location such as a hotel for 14 days or until they could show a clear PCR test.

The sources said that if the measure was introduced it would have to be done correctly and fully thought through.

That would include clear rules on issues such as whether or not a person would have to remain in a hotel for a further five days after taking the PCR test after their arrival.

The sources admitted there were divided views within the Cabinet, and the Department of Justice was cautious about it.

Tánaiste Leo Varadkar also expressed reservations on Thursday, saying it would be disproportionate and would not be workable in the State because of the open border.

Government sources have indicated that they cannot rule this approach out. They also said that such a regime may encounter legal and constitutional difficulties.

The National Public Health Emergency Team (Nphet) expressed “continuing concern” about international travel, and in a letter to Government published on Thursday the team said further travel measures should be adopted.

Airports

Between the period of the start of December 2020 and January 11th this year over 190,000 people arrived into Ireland by air, with 37,000 of these coming from the UK and almost 70 per cent of the latter number flying from airports in southeast England.

Some 12,000 people travelled from the USA, and data from the passenger locator form system shows that in those four to five weeks some 1,400 people came from South Africa and over 1,600 from Brazil to Ireland.

In the context of these numbers Nphet expressed its “continuing concern about the risks associated with international travel, whether by Irish residents or by travellers from other countries to Ireland”.

“The Nphet noted that in response to the emergence of variant strains many EU countries have adopted more stringent travel policies to meet these new risks. These include combinations of pre-departure testing, quarantine requirements on arrival and post-arrival testing rules.”

The team also recommended the removal of “discretion” in relation to the restriction of movements and PCR-testing post-arrival.

Passengers from the UK, South Africa or any countries in South America are also advised to self-isolate (stay in your room) for the full period of 14 days following their arrival into Ireland.

Labour TD Duncan Smith said the advice from Nphet represented a “big shift”.

“Since the onset of the virus the Government has been inept at halting the virus at our airports. Irish people have made hard sacrifices for almost a year, and yet we still have a situation where visitors from abroad are visiting Ireland but not following the rules.”

Measures

Meanwhile two legal experts have said the introduction of mandatory quarantine for travellers into the Republic would be likely to survive a constitutional challenge.

A quarantine regime was obliquely discussed soon after the introduction of the pandemic measures last year, and a view may have been expressed by the then attorney general that it would not be constitutional, according to Dr David Kenny, of the Trinity College, Dublin, school of law.

“We never really had a firm presentation of the issue,” he said. “I know that Nphet wanted it. It was one of the few areas of early disagreement between Nphet and the Government.”

There are human rights elements with almost all of the pandemic measures that have the force of law, and freedom to travel domestically and internationally have been recognised by the courts as unenumerated constitutional rights.

“But they are far from unqualified,” he said. “I personally don’t see why it would be necessarily constitutionally problematic.”

Prof Conor O’Mahony of the school of law in University College Cork, was also of the view that the introduction of a quarantine regime would survive a constitutional challenge.

The public health measures introduced at the outset of the Covid crisis include a measure allowing for the detention of a person who has the disease but refuses to stay at home.

“To detain someone in quarantine is arguably less of an infringement on a person’s constitutional rights as that person would have chosen to come here knowing that a quarantine regime was in place,” he said.

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