So we hear by Twitter on Thursday last week that from the crack of dawn on Saturday just gone, “high-value business travellers” are partially exempt from self-isolation requirements when entering or returning to England. A number of media, arts and sports roles have been granted an exemption also. “Conditions apply”, it said, and so they do.
To start with, what is a “high-value business traveller” in the first place? BBC News Online reported in one article that it means someone who “represents a firm of at least 50 employees and must demonstrate that they are delivering significant business benefits to the UK”. Sky News had it differently – that the trip into or out of the UK must create or preserve at least 50 jobs here. Another piece on BBC News suggests that “the trips must result in a deal which creates or preserves 50 jobs or leads to a £100 million investment or order“. Saturday’s Times noted that the £100,000 figure originally announced by The Department of Transport for that purpose was just “a mistake“, no doubt the sort of rounding error anyone could make and not in any way an indication of confusion or disarray within Whitehall.
Qualifying executives will be one of three types: (i) “returning executives” are UK based directors coming home after a trip overseas; (ii) “multi-national executives” are those normally employed overseas who are coming to visit a UK branch or subsidiary of their organisation; and (ii) “international executives” are those coming to the UK from an employer abroad with a view to making a final investment in a UK business, placing a £100million-plus contract for the purchase of goods or services from such a business, or setting one up.
The new law itself is found in the parenthetically overloaded Health Protection (Coronavirus, International Travel) (England) (Amendment) (No. 28) Regulations 2020, which come saddled with the usual accompanying guidance. Issued with hours to go on Friday afternoon, this adds little clarity. It applies to company directors or equivalents travelling or returning to England “who would be likely to bring significant economic benefit to the UK as a result of their activity“. That means a 50%-plus chance of their travel (i) creating or preserving at least 50 UK-based jobs within the next 12 months; or (ii) leading to the purchase of goods or services from a UK business with at least 50 employees where that purchase is worth at least £100m or is likely to create or preserve 50 or more jobs in that business.
Unusually, the Regulations are the key to understanding the guidance, rather than the other way around. They move away from the seemingly objective tests of likelihood in the guidance to the much more sensible question of whether the individual executive doing the travelling (i.e. not just his/her boss or the person who signs that letter) “reasonably believes” that the travel will be more likely than not to have those economic benefits. On that basis, it does not matter whether the jobs are ultimately saved or the order placed or the business established, so long as the executive can demonstrate some level of objective belief that the travel would help towards that end, and that his/her physical presence was required in order for that hope to be realised. It is doubtful that this provision will be too rigorously enforced. Proving lack of reasonable belief is hard at the best of times but particularly very much in retrospect and against the background that if the alleged beliefs of incoming executives are challenged too robustly or dissected too forensically, they will just stop coming altogether, the exact opposite of what this hasty lash-up is designed to achieve.
A Whitehall source quoted in the Times referred to these measures as “optically atrocious” but the reality is actually nowhere near the images they create of the 0.1% swanning serenely through the Fat Cat customs channel at Heathrow, immunised against the effects of covid not by vaccination but merely by wealth and position. The travelling executive must carry a letter on company notepaper confirming his/her personal details but also a short explanation of why the executive has to travel into or out of England and the grounds for his/her belief that doing so is “more likely than not to deliver significant economic benefit to the UK“. While the guidance says “short”, however, it must be the case that the more detailed the explanation, the harder it would be for anyone challenging it to hole the thinking behind it. Therefore if in doubt, it is probably best, like O-Level Maths, to show your workings.
A useful list of sample activities which potentially qualify for the self-isolation exemption appears in the guidance – key board meetings, critical stage discussions of substantially-formulated business plans with major investors, making go/no-go decisions on site closures, customer site visits with a view to awarding (or not) a very large new order or investment, etc. All are expressly distinguished from ordinary or routine meetings and visits and none of those activities, however critical, however substantial their prospective impact, will entitle the executive not to self-isolate fully if they can be done remotely or by someone else not subject to any self-isolation requirement.
And even then, it is only while (and to the extent required by) carrying out those activities that the self-isolation rules are lifted. Gone are the days of popping over for a quick site visit, lunch in the Boardroom and then off sightseeing, or maybe taking in a show. The visiting exec will effectively be confined to quarters (hotel room, empty meeting room) for the rest of his/her visit, allowed out and to interact with others only to the minimum extent required to bring home that substantial benefit.
It is hard to think that a combination of technology, powers of attorney or substitution and the very high bar of anticipation of substantial economic benefit will leave many business visitors who can genuinely benefit from this relaxation. To say that this measure shows Britain (or at least England) “open for business” is therefore treading a very thin line between the merely disingenuous and the actively misleading.
© Copyright 2020 Squire Patton Boggs (US) LLPNational Law Review, Volume X, Number 343