Michael Parker v The Commissioners for HMRC

The conditions that need to be met for this exception to apply are set out in paragraph 22(3) as follows:

MP must therefore first establish that he arrived in the UK as a “passenger”. Passenger is not defined for the purpose of the SRT. HMRC rely on the definition of passenger in the Court of Appeal decision in Laroche v Spirit of Adventure (UK) Ltd [2009] EWCA Civ 12 (“Laroche”) which provides at [61] that:

HMRC go on to submit that this definition supports their contention that if the UK is P’s final destination, P is not a passenger when P arrives in the UK because their journey is at an end and they are no longer in the process of being conveyed from place to place.

HMRC submit that each of MP’s journeys was a distinct journey so that when he arrived in the UK on each occasion, that was the end of his journey and he was no longer being conveyed and therefore no longer a passenger.

HMRC accept that if MP had been on a single ticket from Iraq to Naples, Naples to Tokyo or Tokyo to Dublin that had an overnight stopover at a hotel near Heathrow Airport, he would meet the definition of “passenger” because the UK would not be the end of his journey on each occasion. They submit however that because MP had separate tickets for each part of his journey into and out of the UK, he was not a passenger when he entered the UK.

We agree with counsel for MP that this distinction is arbitrary and not supported by the wording of the legislation. There is nothing in the legislation that provides that a person must be booked on a single ticket that includes transit through the UK in order to qualify as a “passenger” on entering the UK.

MP’s evidence was that he had bought return tickets for his holidays from Heathrow Airport because his employer bought and paid for his ticket to and from Heathrow Airport and his reasonable view, supported by evidence, was that it was cheaper and logistically easier to buy return tickets from Heathrow Airport rather than to buy single tickets or multi-stop tickets to travel to Naples, Tokyo and Dublin. Beyond this financial and logistical advantage, MP had no preference for travelling via Heathrow Airport or reason to stay at a hotel near Heathrow Airport. MPs choice of ticket type does not prevent MP from being a passenger while in the UK.

Further the condition in paragraph 22(3)(a) is only that “P arrives in the UK as a passenger” (italics added). Even if the UK was MP’s final destination and that meant that he was no longer being “conveyed” from one place to another after he arrived in the UK, he would still have been “conveyed” to the UK and therefore arrived in the UK as a passenger.

HMRC read “only” in paragraph 22(3)(a) as meaning that being a passenger must have been P’s only purpose of being in the UK on the day in question. HMRC submit that MP does not meet this condition because being a passenger was not his only purpose in arriving in the UK, they submit that he also arrived to meet with family members (his wife on 8 February and his stepdaughter on 17 February) or drop off family members who lived in the UK (his wife and stepdaughter on 28 February).

We do not accept that MP did have this dual purpose in entering the UK, which we discuss further below.

We find therefore that MP arrived in the UK as a passenger on 8, 17 and 28 February 2020 and therefore meets the condition in sub-paragraph 22(3)(a) on each occasion.

It is not in dispute and we have found as a fact that with respect to 8 and 17 February 2020, MP left the UK on the next day so that the condition in paragraph 22(3)(b) is met. It is also agreed between the parties and we agree, that if 29 February 2020 is a day that does not count because it falls within paragraph 22(4), then the fact that MP did not actually leave the UK on 29 February does not prevent MP from meeting para 22(3)(b) for 28 February 2020 because MP left the UK on the next day which would otherwise fall to be counted.

Turning then to the condition in paragraph 22(3)(c), HMRC submit that MP has not given a comprehensive account of his activities in the UK on each of the 8 February, 17 February and 28 February 2020. They further submit that meeting with family members on 8 and 18 February 2020 so that they could travel to their destination together as part of a shared holiday and dropping off those same family members in the UK on 28 February 2020 constitutes activities that are to a substantial extent unrelated to MP’s passage through the UK.

We find that MP has provided a comprehensive account of his activities while in the UK, with supporting documentary evidence. As stated in our findings of fact, he did very little while in the UK. Consequently there is little account that he can give of his activities. Further, what he did do was consistent with the activities of a passenger who is in transit. As HMRC acknowledge in their own guidance in RDRM11730:

MP did not travel into central London, return to his family home, or undertake any activity that could sensibly be characterised as an end in itself. The hotel accommodation, meals taken there or at the airport, and travel between the hotel and the terminal were all ancillary and functionally connected to onward international travel.

Meeting with his wife and stepdaughter because they were travelling with him on the next leg of his journey were not “activities that are to a substantial extent unrelated to his passage through the UK.” Had he met with friends or family for any reason other than onward travel with him that is likely to be an activity that is substantially unrelated to his passage through the UK. However, on the facts of this appeal, MP did not need to travel to the UK to see his wife or stepdaughter as he was spending his holiday with them outside of the UK. MP’s evidence was that he did not need to escort his wife or 33 year old stepdaughter from or back to Heathrow Airport for their respective holidays and we have no reason to doubt this. MP met with his wife and stepdaughter because they were travelling out of the UK together, which is very much related to his passage through the UK.

We find therefore that MP meets the Transit Exception for 8 and 17 February 2020 and, subject to him meeting the Exceptional Circumstances Exception for 29 February 2020 which we address below, MP will meet the Transit Exception for 28 February 2020.

The conditions that need to be met for this exception to apply are set out in paragraph 22(4) as follows:

As set out by Nugee LJ at paragraph [40] of the decision in A Taxpayer v HMRC [2025] EWCA Civ 106 (“A Taxpayer”), five conditions must therefore be met for this exception to apply:

The circumstances that MP relies on are set out in paragraphs [‎30] to [‎35] above. HMRC do not accept that these circumstances meet conditions (1), (4) or (5).

Nugee LJ goes on in A Taxpayer to set out the test that the FTT must apply in order establish whether the conditions have been met. With respect to whether MP was ‘prevented’ from leaving the UK Nugee LJ states:

At paragraph [61] Nugee LJ states:

Further at paragraph [71] he states:

We turn then to the question of whether the circumstances were in fact exceptional.

HMRC submit that adverse weather conditions and flight cancellations are not exceptional and therefore the fact that MP’s flight to Dublin was cancelled due to adverse weather conditions is not exceptional.

MP submits that while adverse weather conditions are not exceptional, flight cancellations as a result of adverse weather conditions are very rare. MP analysed CAA data for all flights from 27 UK airports, including all major hubs, for the period from 2018 to 2024. This analysis established that the overall flight cancellation rate in this period is 1.53% and if one takes out the Covid affected periods this reduces further to 1.39%. The CAA data does not provide the reason for the cancellation so it is not possible to establish from this data how many of the cancellations were due to adverse weather. Other possible reasons for cancellation outside of covid put forward by MP are as follows:

We recognise that the statistical evidence relied upon by the Appellant relating to flight cancellation rates is necessarily general in nature. We therefore do not treat the figures as determinative in isolation.

However, the evidence is nonetheless informative. It provides an empirical context showing that flight cancellations, viewed across UK aviation as a whole, are uncommon rather than routine and further that only a subset of these cancellations will be due to adverse weather conditions.

When that general context is considered together with the specific facts of this case — namely the closure of a major international airport due to a named storm event, resulting in widespread operational disruption — we are satisfied that the circumstances encountered by MP were out of the ordinary course, unusual, and not regularly or normally encountered by international travellers.

Accordingly, looking at all the relevant circumstances as required by A Taxpayer, and applying the ordinary meaning of “exceptional” as explained by Lord Bingham and followed by Nugee LJ, we find that the circumstances taken as a whole were exceptional.

HMRC further submits that MP was not actually prevented from leaving the UK on the 29 February 2020 and he did not intend to leave the UK as soon as circumstances permitted because he did not take any steps to depart the UK as soon as the adverse weather conditions had sufficiently abated for Dublin Airport to reopen. MP did not try to secure an alternative flight to Dublin on 29 February 2020 or to secure a flight or alternative means of transport out of the UK to any other destination that day. Instead MPs intention was to depart the UK only in accordance with arrangements made by BA, which were not until the next day, some time after the adverse weather conditions had prevented flights from landing in Dublin.

In determining whether the exceptional circumstances prevented MP from leaving the UK that day and whether he intended to leave the UK as soon as those circumstances permitted, we approach the question by reference to practical reality rather than abstract possibility. The test is not whether, with the benefit of hindsight, it was theoretically possible for MP to attempt to leave the UK by some alternative means or to a different destination, but whether the circumstances as they presented themselves at the time reasonably permitted departure.

MP’s destination was Dublin. His scheduled flight was cancelled after boarding due to the closure of Dublin Airport because of Storm Jorge. These circumstances did prevent him from leaving the UK as planned. At that point there was widespread disruption, cancellations, diversions and delays, and no information available to MP to suggest that alternative flights to Dublin later that day were realistically obtainable. MP’s checked in luggage remained with the airline; the airline arranged overnight accommodation and expressly informed him that it would rebook him on a flight to Dublin the following day, which it did.

In those circumstances, we find that MP’s acceptance of the airline’s arrangements, and his departure on the rebooked flight the following morning, constituted leaving the UK as soon as circumstances permitted. The fact that weather conditions may have improved later that day does not, of itself, mean that the circumstances then permitted departure in any meaningful or practical sense. Ordinary societal expectations do not require a passenger, in the midst of significant disruption, to disregard airline arrangements, abandon checked in luggage, or attempt speculative alternative travel in order to demonstrate an intention to leave the UK “as soon as those circumstances permit”.

It follows that as a result of MP’s BA flight to Dublin being cancelled and BA being unable to book him onto another flight to Dublin that day, MP was prevented from leaving the UK on 29 February 2020 and therefore met Nugee LJ’s condition 4. Further he left the UK the next day on the next flight offered to him by BA and this meets condition 5.

HMRC did not explicitly concede that the circumstances were beyond P’s control (condition 2) or that P would not have been present at the end of the day but for those circumstances (condition 3) but they also did not put forward any submissions that MP did not meet these conditions.

For completeness we find that MP does meet both of these conditions. Clearly he had no control over Storm Jorge or BA’s decision to cancel his flight to Dublin and as he was sitting on the plane waiting to leave the UK when it was cancelled it is equally evident that had the flight not been cancelled and Storm Jorge had not caused travel disruption he would not have been present in the UK at the end of that day.

For all the reasons set out above we find that:

Consequently MP’s day count in the UK in the tax year 2019/20 for SRT purposes is 89 days. It follows that MP meets the third overseas test in paragraph 14(1) and so is not resident in the UK for that year.

The appeal is therefore allowed.

This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice.