Irish and EU citizens stopped from entering State without Covid tests may have legal case

Passengers prevented from entering the Republic because they have not got the correct Covid test results have potential grounds for legal action against the State, lawyers say.

Airlines prevented Irish and EU citizens from boarding flights to the State last week amid confusion over revived rules demanding that travellers have negative Covid test results before arriving.

Lawyers say Irish or EU citizens refused in this way could potentially take a legal challenge, as they have a right to land in the country.

Barrister and Trinity College Dublin lecturer Patricia Brazil says that Irish citizens have a right to land in their home country and notes that the State cannot deport them.

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EU citizens have the right of freedom of movement within the union. Individual states, including the Republic, can derogate from this on several grounds, including public health.

Ms Brazil points out, however, that any measures taken in this circumstance have to be proportionate.

She stresses that anyone taking such a case after being barred by an airline would have to show that the business was acting on the State’s behest, rather than its own initiative.

Airlines can bar passengers from boarding flights for numerous reasons, including safety or not having the correct identification.

“This situation is still very novel,” Ms Brazil says, adding that the courts had yet to try the issue of whether someone without the proper Covid tests could be prevented from entering the Republic.

Right to land

David Kenny, associate law professor at Trinity College Dublin, agrees that Irish citizens have a right to land in their home country.

He points out that the regulations make it an offence for someone to arrive in the Republic without the correct Covid test result, so they do not appear to envisage airlines barring people without these documents.

Prof Kenny also maintains that a passenger barred by an airline could take a case, but similarly argues that they would have to show the airline was effectively doing the State’s work when it prevents them from boarding.

Ms Brazil adds that various challenges to the controversial hotel quarantine introduced earlier this year showed the courts were prepared to give the State some latitude when it came to dealing with the pandemic.

Government announced early last week that it was introducing rules demanding that vaccinated travellers have a negative result from an antigen test taken within 48 hours of arriving in the State.

Those who are not vaccinated must show a negative result from a PCR test taken within 72 hours of their arrival.

The Government first said it would apply the rules from December 3rd, but then changed this to December 5th.

However, airlines subsequently complained that they were not told of the change until late on December 2nd.

Then they maintained that it was not clear if the Government intended to apply the rule from midnight on December 4th or on December 5th.

Barred from boarding

Two passengers who travelled to London over that weekend subsequently contacted The Irish Times to say they were barred from boarding flights because they did not have the correct test results.

Ryanair stopped one person at a boarding gate in Gatwick, while Aer Lingus halted the second when he attempted to check in at its desk in the same airport.

Both had checked Government websites before travelling and say these had advised getting PCR tests after their return.

The pair were forced to delay their return for 48 hours while they arranged antigen tests in London.