Is there a defence for airlines in the event of denied boarding claims under European Regulation EC261/2004 (the Regulation), as a consequence of misunderstanding the changing US entry requirements?
Executive decision
On 27 January 2017, Donald J. Trump, US President, issued an executive order changing the requirements for entering into the US.
Section 3(c) of the executive order states that:
“…immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 USC 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry…of such persons… (excluding those foreign nationals travelling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations and G-1, G-2, G-3 and G-4 visas).”
Specifically, entry was suspended for nationals from seven countries. These countries being: Iraq, Syria, Iran, Libya, Somalia, Sudan and Yemen.
While the legality, application and enforcement of the executive order remains an ever ‘moving feast’, various information, advice and cautions have been provided to both airlines and passengers regarding travel into the US.
The UK government’s current advice [correct at 9 February 2017] states: “British passport holders, including British nationals who hold dual nationality with these countries, aren’t affected by these measures. However, British dual nationals of one of the seven countries must apply for a visa rather than travel under the Visa Waiver Programme.”
Confusion
Underlining the confusion surrounding the effect of the executive order, press stories, allegedly based on information from the UK Foreign Office state that the executive order:
Given the immediate impact to the aviation industry, on 30 January, IATA made a statement on the US executive order on Travel. It stated that:
“The EO was issued without prior coordination or warning, causing confusion among both airlines and travellers. It also placed additional burdens on airlines to comply with unclear requirements, to bear implementation costs and to face potential penalties for non-compliance.”
Impact for airlines
Essentially there are two broad risks that airlines may face as a result of the ‘travel ban’:
In respect of the first risk identified, the Regulation imposes certain obligations.
The Regulation will be relevant to all airlines departing from the EU and to EU carriers departing for the EU, perhaps with passengers intending to transit through airports situated in EU Member States.
Article 4(3) deals with the obligations of the airline to compensate and assist passengers who are denied boarding against their will. Compensation is fixed under the Regulation.
However, although Article 1(1)(j) confirms that “denied boarding” means “a refusal to carry passengers on a flight, although they have presented themselves for boarding, under the conditions laid down in Article 3(2)”, there is an exception “where there are reasonable grounds to deny them boarding, such a reasons of health, safety or security, or inadequate travel documentation”.
If airlines err on the side of caution (given the mixed messages, confusion, insufficient detail and changing nature of the ‘travel ban’) and deny boarding incorrectly, could a claim for denied boarding compensation be successfully defended on the basis that there were “reasonable grounds” to deny the passenger boarding?
Reasonable grounds in English law
In essence, may the confusion, insufficient detail, and changing nature of the ‘travel ban’ constitute “reasonable grounds”? We will consider this question in the context of English law.
It is arguable that the precise nature, application and enforcement of the ‘travel ban’ has not been communicated in detail. There was a lack of co-ordination or warning that the ‘travel ban’ was to be implemented by the US, and subsequent ‘clarifications’ issued by the Department for Homeland Security have made for a confusing situation of itself. In addition, the day-to-day position in respect of the nature, application and enforcement (and even legality) of the ‘travel ban’ is changing and it is clearly difficult to understand with absolute clarity what travel restrictions apply to which passengers.
Given the high likelihood that passengers will be denied boarding in the mistaken belief that they are ineligible for entry to the US, the question arises whether an airline, which mistakenly denies boarding to a passenger in such circumstances, will be entitled to rely on the “reasonable grounds” defence to a claim for compensation under the Regulation.
The concept of “reasonable grounds” has been the object of judicial consideration in England and Wales in the context of striking out statements of case. In that context, if the statement of case discloses no reasonable grounds for bringing or defending the claim it may be struck out by the court. In this context the court maintains its discretion, and case management powers, to determine whether there are “reasonable grounds”.
However, a statement of case will have no reasonable grounds where it discloses no facts indicating what the claim is about, or the facts are incoherent or, where coherent, and if true, disclose no legally recognisable claim. On this basis, the threshold for “reasonable grounds” is relatively low, with a coherent decision, based on facts which could support the decision, being sufficient.
In other contexts, “reasonable grounds” has been held to mean that it is necessary to demonstrate actual knowledge of relevant facts which provided the grounds for a relevant belief, established by evidence. Accordingly evidence would need to be adduced from the agent who denied boarding as to the basis of that decision (i.e. a belief, based on relevant facts that the passenger would not be permitted to enter the US).
Comment
If an airline (in defence to a claim for compensation under the Regulation) can evidence that a decision to deny boarding was taken based on facts sufficient to meet the “reasonable belief” requirements and the position of the passenger (with regard to nationality and/or travel documents), even if mistaken, the airline should benefit from the “reasonable grounds” defence.
While there is no guarantee that any individual judge will apply the same “reasonable grounds” test in the context of a denied boarding claim under the Regulation, the body of judicial consideration of the phrase in the context of strike out applications, gives some optimism that a defence on this basis may be successful.
