Online travel agents claim they can send holidaymakers to Spain against Foreign Office advice

The FCO now warns against all non-essential travel to Spain

Go on holiday against Foreign Office advice or lose some of your cash: that is the response of leading online travel agents to the sudden government warning against travel to Spain.

Before the coronavirus pandemic, Britain’s mainstream travel industry shared a common convention: package holidaymakers should not be taken to a country against Foreign Office advice.

Standard travel insurance policies have a clause saying they do not apply if the holidaymaker goes to a country against official advice.

Once an FCO warning is issued, traditionally the only room for discussion is: should British holidaymakers be fly home immediately?

But since the unexpected warning on 25 July 2020 against travel to mainland Spain, followed two days later by the Spanish islands, with two weeks of quarantine mandatory for all returning travellers, the unanimity has crumbled.

Love Holidays and On The Beach say trips can go ahead regardless of the travel advice – and are stopping short of issuing refunds for the air-fare component of the holiday unless and until it is refunded by the carrier.

Package holidays arranged by such online travel agents typically include flights on easyJet, Jet2 or Ryanair and separately sourced accommodation.

Such trips are covered by the Package Travel Regulations 2018, which say the customer is entitled to a full refund “in the event of unavoidable and extraordinary circumstances occurring at the place of destination or its immediate vicinity” – if those circumstances significantly affect the performance of the package.

Travellers in search of a refund may contend that the Foreign Office description of Spain as “unacceptably high risk” constitutes “unavoidable and extraordinary circumstances” – and that it will significantly affect the performance of the package, because travel insurance will be void and the traveller must quarantine on return.

Reluctant holidaymakers can cite support from Abta, the travel association. A spokesperson said: “Customers are under no obligation to travel on their package holiday, in this case to Spain, if they don’t want to, and they should speak to their travel provider to understand their options.”

But Love Holidays, in its information to customers, is not mentioning its obligations under the Package Travel Regulations. The firm is saying simply: “Airlines are currently not providing customers with a cash refund option if the flight is going ahead, even if understandably you do not wish to travel due to UK government advice.

“We recommend checking your booking with your airline to review your options, as well as your travel insurance policy to see if you could be covered by your insurer.”

Meanwhile On the Beach, which along with rivals has had to hand back tens of millions of pounds to customers since the coronavirus pandemic began, is challenging the usual interpretation of the law.

In a statement to The Independent, the company said: “The current situation with Spain is that airlines are still flying in huge volumes, so customers can be carried to the destination, and the destinations are still open and ready to welcome holidaymakers – so the package can be delivered without any significant changes.”

The online travel agent is telling customers: “FCO advice against all but essential travel has previously meant that there is a clear and present threat to life resulting in a total shutdown of that destination and all flights to that destination.

“If this were the case currently with your destination, then flights from the UK would not remain operational in the volumes that they are.”

On the Beach argues that it is fair to send people to destinations in Spain far from Aragon, Navarra and Catalonia, locations for the outbreaks that led to the Foreign Office decision.

“We will provide all affected customers with an option to keep or cancel their holiday. If customers affected choose to cancel their holidays, we will offer a full refund on accommodation and transfer fees, and waive any administration fees.

“Unfortunately, as most flights continue to operate on a non-refundable basis, OtB is currently unable to offer refunds on the flight portion of any holiday booked.”

On the thorny question of travel insurance, the On the Beach statement said: “We have taken legal advice that says that customers should still be able to use their travel insurance given that section 11 of the Insurance Act says that insurers can’t avoid the claim on the basis of non-compliance with a term (such as ‘don’t travel against FCO advice’) if that term is not relevant to the loss (such as a pool accident).

“Ultimately, although we always advise customers to take out travel insurance, it is not part of the package.”

UK residents are covered by the European Health Insurance Card (Ehic) for emergency treatment by the health service in Spain – though this does not cover additional costs nor repatriation. Many travellers rely on Ehic rather than taking out travel insurance.

Along with competitors, On the Beach is lobbying intensively for more nuanced travel advice.

Abta adds: “To help travel businesses and customers make more informed decisions at this exceptional time it would be helpful if the government could provide further information about the criteria and infection rates being used to determine its changes to policy and advice.”

The government says: “We are monitoring the international situation very closely and keeping this advice under constant review so that it reflects our latest assessment of risks to British people. 

“We take a range of factors into account.  For coronavirus, this includes the incidence rate and the resilience of healthcare provision in each country.”

With so much uncertainty, it may take a test case to establish whether a Foreign Office warning automatically triggers mass cancellations to that destination.