“I CERTAINLY EXPECT there will be further cases as it is open to anyone who is subject to the hotel quarantine regime to challenge the constitutionality of their detention.”
This is according to Mary Trayers, the lawyer who represented the woman who took a High Court challenge last week after being forced into mandatory hotel quarantine despite being fully vaccinated.
One day after the government announced its new ramped up hotel quarantine scheme, two people who flew to Ireland from Israel brought cases to the High Court against their detention in hotels.
One government source with knowledge of the spat between Department of Foreign Affairs and the Department of Health over the expansion of the ‘red list’ of states included on the mandatory hotel quarantine list said that the legal and logistical issues have “not gone away”.
The issues are expected to “play out over the next few weeks”, the source added.
They said it is fully expected there will be a test case – adding that it was noteworthy that the Department of Health had opted not to defend the cases that cropped up over the weekend, resulting in cases being struck out this afternoon.
On foot of a ministerial order, Inbar Aviezer was permitted to leave the hotel yesterday.
The permission she received to leave the hotel comes after Israel was removed from the list of ‘red list’ origin countries.
On Friday, the government announced that Israel, Albania and St Lucia were to be removed from the list, but said passengers who had already arrived were told they would need to complete their period of quarantine.
The additional countries to be added to the list are: Bangladesh, Belgium, France, Italy, Kenya, Luxembourg, Pakistan, Turkey, the USA, Canada, Armenia, Bermuda, Bosnia and Herzegovina, Curaçao, Maldives, Ukraine.
Aviezer has been quarantining in a hotel in Dublin since she arrived into Ireland on Wednesday.
Before travelling, she was vaccinated for Covid-19 in Israel and had tested negative for the virus twice in recent days.
Another passenger who arrived into Ireland from Israel, Dublin man Derek Jennings, was also allowed to leave at the weekend as his father has been admitted to intensive care after his health deteriorated.
Conor Power SC, who also represented Aviezer, said on Friday that his client believed she was being detained unlawfully.
Power said that the requirement for her to quarantine at a hotel was “disproportionate” and that factors such as her vaccination and negative tests had not been considered.
Aviezer is a citizen of Switzerland, Israel and the United States. She is due to start a new job in the healthcare sector this month, her lawyer told the court.
She had been quarantining at the Holiday Inn Express Hotel near Dublin Airport since Wednesday under the requirements of the Health (Amendment) Act 2021.
Over the weekend, the court agreed to hold an inquiry into her detention after lawyers for the Minister for Health conceded for the purposes of this case that the woman was in detention.
How countries are designated
Speaking to The Journal, Trayers said “the fact the State acknowledged it as being detention in her case means that access to the courts under Article 40 is now open to persons in a similar position – so I say that’s significant”.
She said the crux of the case was the designation of Israel and the basis that it was designated.
“We say that on the basis of the scientific evidence available that it should never have been put on the list in the first place.
“The numbers just didn’t justify it and that seems to have been accepted by the government’s u-turn on it yesterday.
“The other major point in our case was that the State accepted in the context of our proceedings – and for the first time – that hotel quarantining was a detention.
“Prior to that people were being detained without it being formally said they were being detained and without the legislation calling it a detention,” said Trayers.
She added that her team also highlighted points about the constitutionality of the detention, but they didn’t have the chance to have those fully heard in court, due to the State releasing her client.
The other case this weekend was one of the “difficult” cases that a number of government sources had indicated would surface in the weeks ahead under the new regime.
Speaking to the Press Association over the weekend, Derek Jennings said that it was a “relief” to be allowed leave, considering his father’s condition.
He said that he agrees with the quarantine but that “logistically, from the moment we arrived in Dublin Airport it was a bit of a shambles”.
“I just think there needs to be a little bit more logical, open mindedness about the situation here,” Jennings said.
Pressure on HPSC for advice
Following Friday’s incorporeal Cabinet meeting, in which the additions of 16 states to the list were made, it was also agreed that the HSE’s Health Protection Surveillance Centre would being called on, as a matter of urgency, to advise on exempting people that are vaccinated from hotel quarantine.
It is understood that the recommendations will be made “as soon as possible” but are unlikely to be forthcoming for a couple of weeks.
Pressure is expected to be put on the body to deliver its report sooner rather than later, given the expectation that more cases are likely to come before the courts.
Transport Minister Eamon Ryan told Newstalk’s On The Record that Ireland does not have an internationally recognised vaccine certification process, stating that there’s still some concern with the health authorities that even post-vaccination, people may be transmissible.
“But I would expect that will be a change that we will see in the coming weeks and months.”
He added: “That process is not in place internationally yet and that does need to be there.”
However, government sources have said Ireland cannot wait around for the mooted EU vaccine pass system to be up and running, stating that unlike other European countries, Ireland has mandatory quarantine in place – with legal challenges already being taken against it.
Another senior source said they do not buy the argument that just because there is no standard international vaccine pass or document that such a verification system could not be put in place for use in Ireland.
The vaccine pass at an EU level is some way off, possibly months, it is understood.
The Department of Health said “there is no international system that recognises vaccination certification”, adding that “there needs to be an agreed method for people to show as proof of vaccination/immunity”.
“The EU is looking at the issue of a ‘Digital Green Certificate’ at the moment. Ireland is actively engaging in the process,” the department said.
It said the epidemiological situation across Europe and internationally “is much poorer than it is in Ireland at present”, stating that the CDC notes in their recommendations of 2 April 2021 that “the risks of SARS-CoV-2 infection in fully vaccinated people cannot be completely eliminated as long as there is continued community transmission of the virus”.
Keeping vaccinated people in quarantine
The Department of Health said there is also some evidence that people who have been vaccinated have subsequently been diagnosed with Covid-19 involving a variant of concern.
“It’s too early to know if, or to what extent, vaccinated individuals may transmit the virus,” it said, adding that quarantine measures in Australia and New Zealand still apply to vaccinated individuals.
“As such, vaccinated persons arriving from designated states must enter and complete mandatory quarantine,” the statement concluded.
Despite this, some government sources have said the suggestion it needs to be an EU-wide vaccine cert “do not hold water” as the government has been requiring documentary evidence of a PCR test for months and there is no standard for that.
Those in government circles that saw how the two departments had to tease out a compromise to the expansion of the scheme believe the main issue in relation to the legality of mandatory hotel quarantine will be proportionality, with one stating that the government cannot act in an arbitrary way by detaining some people but not others without a clear defensible rationale.
It is expected that the next big test for the new system will be on Thursday when the additional countries are added. All eyes will be on hotel capacity, with some in government concerned there may not be enough hotel rooms to deal with the number of passengers that could arrive from abroad.
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