As expected, Constitutional Court approves Madrid’s overruling of Canarian Government’s antigen test decree

Updated 18 December: There really was never any doubt about it, on any level, and now Spain’s top Court, the Constitutional Court, has approved Madrid’s overturning of the Canarian antigen decree. The only tests permitted for entry to any part of Spain will be the PCR, TMA, or any equivalent EU-approved test, and as I said in the last update below, travellers must check for themselves what alternatives might be both available and permitted if they don’t want a PCR or TMA, but it won’t be a simple antigen test that was never in the Canarian Government’s power to allow.

Updated 16 December: I said it was beyond their powers, that it could not stand, and it has not stood. Madrid has overturned this decree that could not, and should not, have been passed in these islands. The tests required for entry to Spain, any part of Spain, including the Canaries, are a matter of border control which is a national power under national Government jurisdiction. The Constitutional Court will be required to approve Madrid’s decision but that is a foregone conclusion, as already acknowledged in the Canaries. That this was not understood by the regional authorities here is incomprehensible … and so we must presume it was all along just politics to get the tourism sector off the Government’s back by trying to show they were doing what they could, and to allow them to push the blame up to the mainland when it was inevitably overturned by Madrid, as it has now been.

As I say HERE, those who think it’s a good idea to travel in a pandemic must bring a test approved by Spain, not a region, and those tests are PCR, TMA, and any other equivalent as approved by the EU. As I also say on that link, I have absolutely no intention of keeping this website updated with the latest in technological developments, nor of what is available in any particular country where our visitors come from, nor what is accepted this week or next by the EU and so permitted by Spain. This is In Tenerife – not Coming To Tenerife, it is not a travel website, so those who insist on travelling right now need to check what’s available and what’s permitted for themselves. One thing that won’t be, though, is an antigen test … as I always said, despite the utter hysterical madness that accompanied the announcement and its unforgivable hype in almost all the regional media.

Updated 9pm, 9/12: The decree has been published in the BOC HERE.

The Government says that the evolution of the outbreak here requires access to be restricted but, to respect individual liberties that restriction does not include those entering the Canaries for reasons of fundamental rights. As such, the decree says that entry to the Canaries is restricted excepted for journeys, duly evidenced, for reasons of: 

  • medical appointments
  • work, professional, business, or legal reasons
  • education
  • return home
  • care for elderly, minors, dependants, disabled or vulnerable persons
  • financial/insurance reasons
  • legal appearances including notary appointments
  • renewal of or unpostponable official documentation procedures
  • unpostponable official examinations or tests
  • force majeure or situations of necessity
  • other activity of a similar nature, duly accredited.

The decree does not impose the restrictions where other control mechanisms are established, and so all passengers will be allowed to enter wherever they come from if they bring a test and also make a declaration and provide track and trace information by the radar app. The declaration consists of the personal data, location, reason for the visit, and will be approved by Sanidad (Canarias) and made available to passengers on the Canaran Government website. Airlines will have to provide them for passengers, and collect and store them for three months, and send them daily to Sanidad (Canarias). Passengers will also have to undergo verification of absence of fever (body temp of 37.5% or higher) and visual inspection for symptoms: all this will be done by means of non-contact thermometers or thermographic cameras.

The test required will be a PCR test or a rapid test for the detection of SARS-CoV-2 antigens with a specificity of more than 97% and a sensitivity of more than 80%, in accordance with the corresponding approval of an EU or EEA country.  The diagnostic test for active infection must be no more than 72 hours old at arrival in the Canaries where it will be required to be presented. The accrediting documentation must include the full name and passport number of the person tested, the authorised entity that carried out the test with contact details, and the type of test carried out: if an antigen test, the certificate should also confirm that it complies with the required specificity and sensitivity.

I’ve rarely seen such maladroit legislation that appears to ban entry to all apart from the exceptions listed, but then proceeds to allow entry to anyone else who has a test while seeming to assume that those who are excepted from the requirement are only travelling nationally, not internationally. Take the case of a British national living here who has been back to the UK for a visit and is returning home. They are excepted because “returning home” but are also an “international arrival” and so not excepted. Moreover, a test is now required from all non-exempted arrivals rather than just those from high risk countries which is the national requirement.

Spanish law meanwhile still requires a PCR test – and as of tonight the alternative of a TMA test, see HERE – for all international arrivals from high risk countries, and it is Spanish officials manning border controls. If I were a tourist, I would bring a PCR or a TMA. The new Canarian decree, for what it’s worth, will be in effect from midnight tonight and remain in force until 10 January 2021, with possible extensions or modifications at that point.

Original post 9 December: The Canarian Government has announced that it has approved a decree to permit international arrivals in the Canaries to enter the region with antigen tests, the measure to be published later today in the BOC, they say, and coming into force from tomorrow. In an unusual move which speaks volumes about the problematic legal status of the decree, the regional authorities have specifically claimed that they have the power to approve it, claiming an ability to pass the legislation under devolved powers granted under the estado de alarma, as well as from being an ultraperipheral region.

How Spain will react to what is clearly a power grab and legislation in excess of devolved powers is anyone’s guess, as is how travellers will unravel the genuine confusion that now exists as to entry requirements: Spain’s borders are controlled by national security forces and the national law requires PCR tests for entry to each and every part of Spain. Regional President Torres himself says that he is not looking to collide headlong with Madrid but to work with the national Government in “negotiations to harmonise regional standards continue” given a clear difference of opinion with the national Health Department and the recent refusal to allow antigen tests by Spain’s tourism minister Reyes Maroto.

Meanwhile travellers claim that antigen tests are barely more available and hardly much cheaper than the PCR tests that are guaranteed to be accepted, and will wonder whether saving the money to get a cheaper test will be worth the stress of wondering whether they will actually be accepted at border control.