As originally published in the tenth issue of Travel Law Today.

Historically, any change in travel advice by the Foreign, Commonwealth & Development Office (FCDO) would be restricted to a particular country or region. The advice is normally a response to an outbreak of war, terrorism, natural disaster or disease in that destination.

Currently, there is a blanket advisory in place against all non-essential international travel. This was somewhat relaxed in July, with the Department for Transport introducing “travel corridors”, a list of countries where the coronavirus infection rate was low enough to not pose a serious threat to British tourists travelling to those destinations. These destinations are exempt from the blanket advisory against travel and, in some cases, also exempt from quarantine requirements. However, as destinations relaxed social distancing and accepted overseas visitors, inevitably the infection rates started to increase again. Cue changes to the exemption lists at little or no notice, with hugely popular tourist destinations such as Spain and France taken off the exemption list for both travel and quarantine. This meant that the advisory against non-essential travel applied once again to these destinations, and customers returning from them would have to quarantine for 14 days.

These destinations, however, remain open to UK customers, and (at the time of writing at least) have not imposed any reciprocal quarantine requirements on UK visitors. In addition, flights are still operating, hotels are open, and resorts are still accepting and catering for UK tourists. It’s also assumed that the social distancing measures implemented at the destination are not having a significant impact on the holiday experience. 

This leads me to the question, does an FCDO advisory against non-essential travel affect the performance of the package? A particularly pertinent question given the current situation we’re in. There are arguments to suggest not and that package organisers are not under any obligation to refund customers as a result. It could be said that expecting package organisers to provide refunds is unfair if they won’t receive refunds from their suppliers (who are willing and able to perform the package). Where the various components of the package can still be performed by the organiser and its suppliers, then surely the performance of the package is not (and should not be) affected by government policy in the customer’s country of residence? If the customer does not wish to travel against FCDO advice, they can cancel their package upon paying a reasonable cancellation fee to the organiser. Travelling against FCDO advice is certainly not illegal, although it does invalidate a customer’s travel insurance.

Cancellation of package holidays are, of course, governed by the Package Travel and Linked Travel Arrangements Regulations 2018 (PTR). Under Reg 13(2)(b) of the PTR, organisers can cancel the contract because of unavoidable and extraordinary circumstances”. Unavoidable and extraordinary circumstances (UEC) are defined in the PTR as a situation beyond the control of the party who seeks to rely on it, the consequences of which could not have been avoided even if all reasonable measures had been taken. The pre-amble to the Package Travel Directive 2015 (PTD) does give some examples of the types of situations that would be considered UEC, and unsurprisingly they include war, terrorism, natural disaster and outbreak of serious disease at the destination. Whilst neither the PTR nor PTD refers to travel advice by the FCDO/a national authority as an example of UEC, such travel advisories will more than likely always be linked to an underlying situation that would fall within the scope of UEC.

The Package organiser’s perspective

So, what about a situation where the FCDO advises against travel, but the organiser is still able to provide the components of the package holiday? Does the organiser still have to cancel the package and provide a refund under Reg 13(2)(b)? On the face of it, arguably not, although this treats packages as individual components and not as a sum total of its parts, and it also doesn’t take into account the special contractual nature of a package holiday. In Jarvis v Swan Tours [1973], the judge described a holiday as a contract to provide “enjoyment or entertainment”, a breach of which can result in damages for mental distress being awarded to the customer. This was further supported by Hayes v Dodd [1990], where it was found that a customer is entitled to damages for mental  distress/disappointment if the object of the contract is to provide peace of mind or freedom from distress. Package holidays would clearly fall within this, being a contract to provide the customer peace of mind. On the basis that a holiday is a contract for enjoyment/peace of mind, can this really be delivered by the organiser where a customer is expected to travel to a destination against FCDO advice and without travel insurance? Can it not be argued then that an FCDO advisory against travel prevents the organiser from performing said contract?

The customer’s perspective

The customer can also exercise its right to cancel the package under Reg 12(7) of the PTR, “in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity and which significantly affect:

a. The performance of the package, or
b. The carriage of passengers to the destination.

Does an advisory against travel significantly affect the performance of the package thereby allowing the customer to cancel and receive a full refund? Under Reg 12(7), it’s the customer seeking to rely on UEC in order to cancel the package without penalty and therefore we need to consider how performance of the package is affected for the customer (and not just the organiser).

Even if the package can be performed by the organiser, and flights are still operating to the destination, how would travelling against FCDO advice affect performance of the package for the customer? This will need to be assessed on a case-by-case basis. However, the European Commission (EC) did issue some guidance in May 2020 about how the PTD should be interpreted considering the COVID-19 travel restrictions, and in particular, addressed Reg 12(7). The EC stated: “An official travel warning of national authorities is an important indicator that the package travel contract can be cancelled due to unavoidable and extraordinary circumstances impacting the performance of the trip.” The Department for Business, Energy & Industrial Strategy (BEIS) also released its own COVID-19 bulletin for travel (dated 7th May), and whilst this doesn’t specifically mention FCDO travel advice, it does advise travel companies to: “Keep a close eye on the Government’s advice and contact customers to advise that travel plans have been cancelled, prioritising those with the most imminent travel plans”. This would suggest that government advice in the customer’s country of residence can affect performance of the package, not least where the customer is travelling to a destination that the UK government has stated presents “an unacceptably high risk to British people travelling abroad” (FCDO website), and as such advises against travel.

Ultimately, a court will need to decide on whether FCDO advice against travel significantly affects performance of a package, thereby entitling the customer to a refund of the price of the package (whether under Reg 13(2)(b) or Reg 12(7)). There are strong arguments on both sides, and the author is certainly not without sympathy for the plight many travel companies find themselves in due to the pandemic, the constantly changing FCDO advice, the refusal or delay by airlines and other suppliers in issuing refunds, and a significant drop in new bookings. The author may sympathise with the industry, but courts are generally sympathetic to customers.