Case Report: The FTT Analyse Day Counting Exclusions

In Parker v Revenue and Customs Commissioners [2026] UKFTT 652 (TC), the First-Tier Tribunal (“FTT”) agreed with the appellant that 11 of the 100 days the appellant was in the UK at midnight in 2019/20 were excluded under Para. 22, Sch. 45, FA 2013, such that the appellant spent less than 91 days in the UK and satisfied the third automatic overseas test, such that the appellant was not UK tax resident in the UK for 2019/20.

Context

• The appellant is a Chartered Engineer who worked overseas from July 2017 to June 2025 managing civil engineering and construction work in the Kurdistan Region of Iraq.
• The appellant’s family home is in the UK and his employer arranged and paid for return flights between Iraq and London as part of his employment terms and conditions.
• This case is in relation to an appeal by the appellant against a closure notice assessing the appellant to tax of c.£65k for the 2019/20 tax year on the basis that the appellant was UK resident in 2019/20 and, therefore, subject to UK tax on his worldwide income.
• The appellant had stated on his tax return that he was not UK resident under the statutory residence test.

Legislation

• The statutory residence test (“SRT”) is a set of rules for determining whether an individual is resident in the UK for certain tax purposes.
• The rules are set out in Sch. 45, FA 2013 and HMRC has very helpful guidance on the SRT.
• In short, an individual is UK tax resident for a tax year if:

• • The automatic resident test is met for that tax year, or
  • The sufficient ties test is met for that tax year.

• The automatic residence test is met if an individual meets at least one of the automatic UK tests and none of the automatic overseas tests and the sufficient ties test can only be considered if none of the automatic UK or automatic overseas tests are met.
• In this case, none of the automatic UK tests are met, and the appellant asserts that the third automatic overseas test is met (with effect that they are not UK tax resident for 2019/20).
• The third automatic overseas test is that:

• • The individual works sufficient hours overseas during the relevant tax year.
  • During the relevant tax year, there are no significant breaks from overseas work.
  • The number of days in the relevant tax year on which the individual does more than 3 hours’ work in the UK is less than 31.
  • The number of days spent in the relevant tax year spent in the UK is less than 91.

• In this case, the only dispute is around the number of days the appellant spent in the UK in the relevant tax year. As such, whether the appellant was UK tax resident in 2019/20 revolves on whether the appellant spent 91 days in the UK in 2019/20.
• In this case, “a day spent” in the UK means a day in which the appellant was in the UK at midnight, except where:

• • The individual arrives in the UK as a passenger and leaves the next day and does not engage in activities that are, to a substantial extent, unrelated to the individual’s passage through the UK. (“Case 1”)
  • The individual would not be present at midnight in the UK but for “exceptional circumstances” beyond the individual’s control and the individual intends to leave the UK as soon as those circumstances permit. (“Case 2”)
  • The day falls between 1 March 2020 and 1 June 2020 and the individual is present in the UK for an applicable reason related to coronavirus and, in the relevant tax year, the individual is resident in a territory outside the UK (“Case 3”).

Decision

• It is common ground that the appellant was present in the UK at midnight on 100 days in the 2019/20 tax year.
• The appellant argued that 11 of the days did not count due to the three cases above. HMRC accept that 7 of the days did not count pursuant to Case 3, but do not accept the other 4 days.
• As such, the issues in this case are:

1. 1. Whether the appellant is entitled to disregard three days (8 February, 17 February and 28 February 2020) under Case 1 on the basis that he was in the UK solely in transit between two countries outside the UK and did not engage in activities substantially unrelated to his passage through the UK.
   2. Whether the appellant is entitled to disregard one day (29 February 2020) under Case 2 on the basis that he was prevented from leaving the UK due to exceptional circumstances beyond his control, namely the cancellation of his flight to Dublin following adverse weather conditions associated with Storm Jorge.

• Note that the 28th will only be excluded via Case 1 if the 29th is excluded via Case 2 (otherwise the appellant did not leave the next day).

Case 1

Did the Appellant Arrive in the UK as a “Passenger”?

• There is no definition of passenger for these purposes and, as such, a purposive interpretation should be taken.
• A “passenger” is someone (i) who is not regarded as contributing to the carriage of himself or the other persons on board and (ii) who is on the vehicle for the predominant purpose of being conveyed from one place to another.
• HMRC’s argument is that the appellant’s ticket was to the UK and not, for example, a single ticket from Iraq to Naples where Heathrow was a stopover. As such, HMRC argued that the appellant ceased to be a passenger on arriving in the UK.
• The appellant was travelling to Dublin next and the ticket situation to which HMRC refer arose merely because the appellant had booked return flights from Heathrow Airport rather than a round trip or single flights as, in his experience, it is cheaper and logistically easier to do that.
• The FTT held that 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.
• Regardless, the wording of the legislation is that the individual “arrives” in the UK as a passenger, i.e. even if the UK was the final destination, the appellant would have arrived in the UK as a passenger.“Activities that are to a Substantial Extent Unrelated to the Appellant’s Passage Through the UK”

• In terms of “activities that are to a substantial extent unrelated to the appellant’s passage through the UK”, the FTT held that the appellant did not visit his family home or travel in central London, he merely ate at his hotel and spent time with his family (with whom he was travelling anyway, i.e. he did not need to come to the UK to do this).
• As such, the FTT held that all these activities were ancillary and functionally connected to onward international travel.

Summary

• As such, the appellant arrived as a passenger, left the next day, and did not undertake activities that are to a substantial extent unrelated to the appellant’s passage through the UK.
• Therefore, Case 1 applies to 8 and 17 February 2020 and (if Case 2 applies to 29 February 2020) also to 28 February 2020.

Case 2

Conditions

• For Case 2, as set out (at [40]) in A Taxpayer v HMRC [2025] EWCA Civ 106, five conditions must be present:

1. 1. The circumstances are exceptional.
   2. The circumstances are beyond the individual’s control.
   3. The individual would not be present in the UK at midnight but for those circumstances.
   4. The circumstances prevent the individual from leaving the UK.
   5. The person intends to leave the UK as soon as those circumstances permit.

• The only dispute was around conditions 1 and 5.

Are the Circumstances Exceptional?

• “Exceptional” in this case is an ordinary English word and is interpreted as such. It does not need to be unique or rare, but it cannot be one which is regularly or routinely encountered.
• HMRC’s view is that adverse weather is not exceptional. However, the appellant’s argument is that, while adverse weather is not exceptional, flight cancellations due to adverse weather are indeed exceptional.
• The appellant provided data showing that roughly 1.39% of flights were so cancelled (ignoring Covid) between 2018 and 2024.
• Based on this empirical data and the specific facts of this case, the FTT held that the closure of a major international airport due to a named storm event, resulting in widespread operational disruption was indeed exceptional.

Did the Appellant Intend to Leave the UK as Soon as the Circumstances Permitted?

• Furthermore, despite HMRC’s arguments to the contrary, the FTT held that the appellant’s acceptance of the airline’s arrangements for alternate flights (as opposed to finding the next immediate route to his destination) was sufficient to constitute the appellant intending to leave the UK as soon as possible.

Summary

• As such, the FTT were happy that all the conditions are met, such that 29 February 2020 does not count towards the appellant’s day count and, therefore, neither does 28 February 2020.

Conclusion

• As such, the appellant’s day count for 2019/20 was 89 (100-11), meaning that they do indeed satisfy the third overseas test, such that they are not UK tax resident for 2019/20.
• As such, the appeal was upheld and the taxpayer won.
• This case highlights the importance of understanding how days are counted for the purposes of the SRT, and the potential risks of spending “one day too many” in the UK.

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