Statutory Residence Test – transit days and exceptional circumstances

• Three days on the grounds that these met the transit day exception in para 22(3);
• One day when he was present in the UK due to exceptional circumstances for the purposes of para 22(4) as he was unable to travel until the next day on account of significant travel disruption that led to all flights being cancelled to his destination; and
• Seven days for COVID under para 22(7).

HMRC’s position

In HMRC’s view, as these days could not be disregarded, the individual would be considered resident in the UK and taxable on his worldwide income for the tax year.

Transit days
HMRC argued that the transit day exception was not met, as he met with his family in the UK who were joining him on the next leg of his journey, and the flights to the UK and onto his next destination were booked as two separate flights.

Travel disruption
Additionally, they argued that the travel disruption he experienced was not sufficient to be considered ‘exceptional circumstances’, on the basis that adverse weather and flight cancellations are not exceptional, and that he was not prevented from leaving the UK as he did not seek to find alternative means to leave the UK before midnight after his original flight was cancelled.

FTT decision

The FTT found in favour of the taxpayer, concluding that:

Transit days
Transit days can be disregarded from the day count tests even when booked as two separate flights, i.e. the ticketing structure was not relevant.

Additionally, even though he was joined by his family in the UK, this was not considered “activities that are to a substantial extent unrelated to P’s passage through the UK” on the basis that they were travelling out of the UK together.

Travel disruption
The delay due to travel disruption could be considered ‘exceptional circumstances’. The taxpayer provided statistical evidence that flight cancellations as a result of adverse weather conditions are very rare and that when considering whether an individual intended to leave the UK as soon as circumstances permitted, this needs to be approached by a real-world test “by reference to practical reality rather than abstract possibility”. As such, accepting the airline’s arrangements and leaving on the rebooked flight the next day was considered to have satisfied the requirement to leave the UK as soon as circumstances permitted. Taxpayers are not required to abandon airline arrangements, chase speculative alternatives or act heroically to preserve days.

As noted in Paragraph 80 of the Tribunal’s decision, “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.”

What does this mean?

This case provides useful clarification as to when days in the UK can be disregarded for the purposes of the transit day and exceptional circumstances exceptions.

The FTT’s decision on the transit exception is welcome, taking a sensible, purposive approach to the meaning of a ‘passenger’ in this context. It is also notable as it is the first time this exception has been considered by a Tribunal, providing useful guidance for similar cases in future.

The decision regarding the ‘exceptional circumstances’ exception is also welcome, as it effectively applies the guidance provided by the Court of Appeal in A Taxpayer v HMRC [2025] EWCA Civ 106. Accordingly, the FTT took a practical view, clarifying that in cases such as this, real world travel constraints should be considered, rather than hypothetical but impractical alternatives.

For further information please contact:

• Nicola Sard
• Matthew Coplestone-Gourlay