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  • Sabreen Ahmed

Testing the 'Proportionality' of Travel Bans in the Wake of OMICRON


Recently Nigeria criticised the UK’s travel restrictions imposed against South Africa in the wake of Omicron variant. Amongst other travel restrictions (like Red Listing), flights were banned to South Africa. Although, on December 15, South Africa was taken off the Red List, the policy raised a key question:

Can travel bans be justified in the current circumstances?


Travel bans and the right to free movement:


Before considering the above question, it is useful to understand which rights are implicated. Under international human rights law, ‘everyone has a right to freedom of movement and residence within the borders of each state’ including “Right to re-enter” one’s own country’.[1] Article 2 of the ECHR Protocol No.4 provides that the right to freedom of movement shall not be restricted “except in accordance with law, such restrictions are necessary in a democratic society to protect national security or public safety, public order, prevention of crime or for the protection of public health, or morals or the rights and freedoms of others (collectively referred as ‘public emergency’).

The test in determining the legality of such travel bans for protection of public health is the proportionality test. Proportionality test consists of three parts:[2]


1. First, that it must be ‘prescribed by law’. This means that the restriction should not only have some legal basis in the domestic law but should provide safeguards against arbitrary interferences.


2. Second, limitations must have a ‘legitimate aim’. The aim of such should be suitable to achieve the goal that was sought. For e.g., in Soltsyak v. Russia,[3] the court held that travel ban for the serviceman to restrict him from sharing confidential information was not sensible as there are various means by which such an information can be disclosed without travelling abroad.


3. Third, the measures must be necessary in a democratic society. It says the restriction must be ‘absolutely necessary’ to meet the ‘pressing social need’. It requires an assessment of various alternatives to determine which is the least intrusive and the most effective. Further, it aims at balancing the advantages of such means in safeguarding public interest in a democratic society with individual rights. In brief, it says that there must always be proportionality between the aims pursued and the rights at stake.[4]

However, in matters of ‘public interest’ the court will respect the legislature’s judgement by virtue of ‘Margin of Appreciation’. Nevertheless, such judgements are not beyond the scrutiny of the court. In assessing a particular policy framework, the court considers if such policy decisions produce disproportionate negative effects at the individual levels.[5]This implies that legislator has exceeded the ‘Margin of Appreciation’ afforded to it


THE TRAVEL BANS FAIL THE ‘PROPORTIONALITY TEST’ AND ARE NOT JUSTIFIED UNDER CURRENT CIRCUMSTANCES:


1. NO PROPER PURPOSE: The domestic law allows restriction on freedom of movement for protection of public health. However, it should not be arbitrary/ unnecessary interference. The WHO advisory has established that though the omicron variant was detected in South Africa, it is spreading worldwide. There is no rationale behind such “targeted travel bans from/to South Africa” as they are not suitable in achieving the legitimate aim of “prevention of spreading of virus”.


2. NO NECESSITY IN A DEMOCRATIC SOCIETY:


a. NOT ABSOLUTELY NECESSARY: As per Handyside Case[6] by virtue of Margin of Appreciation, states determine the policy decisions which are absolutely necessary, however in this case UK has exceeded its ‘Margin of Appreciation’. As pointed out by the WHO advisory[7] that travel bans were justifiable at the beginning due to lack of preparedness and measures to cope with the virus. However, they cannot be justified at this time when alternative measures are available. The study by WZB Berlin Social Science Centre in Germany suggested that quarantine for all travellers were more effective than blanket ban on foreign travel.[8]


b. NOT PROPORTIONAL: The travel bans are not proportional to the legitimate aim sought. As stated by the WHO, such blanket bans are not only ineffective but also have disproportionate negative impact as far as disruption to family rights, professional life, accessibility to healthcare and financial hardships are concerned due to inability to return to one’s home country.[9]


As the Omicron is spreading speedily, the government of UK will have to balance the “Right to Freedom of movement” with the positive obligations of protecting public health while taking any policy decision relating to travel restrictions in the future. While it cannot be denied that protection of public health is a legitimate aim for restricting “Right to Freedom of movement”, the legality of such a restriction will be tested by its effectiveness. It is established that blanket travel bans are ineffective in curbing the spread of omicron and thus the targeted travel bans become irrational or disproportional to the aim sought (which is “preventing the spread of virus” in this case). The ineffectiveness of such measures results in disproportional negative impacts on an individual’s right to family, profession, and accessibility to health services. Hence, travel bans fail the ‘proportionality test’ so far as their effectiveness in preventing the spread of Omicron is concerned.

[1] Protocol No. 4 to the Convention for the Protection of Human Rights and Fundamental Freedoms securing certain rights and freedoms other than those already included in the Convention and in the First Protocol thereto [1963] art 2 [2] Guide on Article 2 of Protocol no. 4 to the European Convention on Human Rights [2021] [3] Soltsyak v. Russia App no 466/05 (ECtHR, 10 February 2011) [4] J. Chritoffersen, Fair Balance: Proportionality Subsidiarity and Primarity in the European Convention of Huma Rights, vol 99 ( Brill, 2009). [5] Garib v. Netherlands App no. 43494/09 (ECtHR, 6 November 2017) [6] Handyside v. UK App no. 5493/72 (ECtHR, 7 December 2021) [7] WHO advice for international traffic in relation to SARS-CoV-2 Omicron Variant (30 November, 2021) < https://www.who.int/news-room/articles-detail/who-advice-for-international-traffic-in-relation-to-the-sars-cov-2-omicron-variant> accessed 11th January 2021. [8] Stopping the Virus and Closing the Borders (16 October,2020) <https://wzb.eu/en/press-release/stopping-the virus-and-closing-borders> accessed 27th December 2021 [9] Miazdzyk v. Poland App No. 2359/07 (ECtHR, 24 January 2012)

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