The Court of Appeal judgment in A Taxpayer might not be quite the gift for taxpayers that it first appears to be.
In most (not all) circumstances your residency status for a tax year is determined by reference to the number of midnights in the year for which you are physically present in the UK. But in counting midnights, you disregard any (up to a maximum of 60 in any tax year) for which you are here only because of exceptional circumstances beyond your control that prevent you from leaving the UK.
What if there’s no physical or legal impediment to your leaving the UK but you feel, having regard to the circumstances, a moral obligation or obligation of conscience to stay? Can that have the effect that you are ‘prevented’ from leaving the UK?
The Court of Appeal has held (in A Taxpayer[2025] EWCA Civ 106) that, in principle, it can. But it’s far from being the ‘Get out of jail free’ (or perhaps ‘Stay in the UK free’) card that it might at first glance appear to be.
For a start, the test is not purely subjective: it’s not enough that you can honestly say that you consider yourself (subjectively) compelled to stay. It’s a question of whether the circumstances would (objectively) be generally regarded as compelling. That is ultimately a value-judgment for the First-tier Tribunal to make.
The court considered the hypothetical case of an illness of a close relative. Whether the illness compels a person to stay will depend on whether the person ‘is in practical terms obliged to do so’. That, the court tells us, may be ‘a mix of the objective facts (does someone need to be there? is anyone else in a position to do so?) and of [the person’s] subjective sense of moral obligation or obligation of conscience’. One without the other will not suffice.
The reference to ‘need’ and to the obligation ‘in practical terms’ suggests that the test is likely to be passed only if your continued presence in the UK is required in order for you to do something; something, moreover, that cannot reasonably be done by anyone else. It seems unlikely that giving moral, as distinct from practical, support will be enough.
In particular, if merely ‘having to be there’ (as distinct from ‘having to do something’) is not enough, it seems that a perceived moral obligation to be present at the bedside of a seriously ill or dying relative is unlikely, without more, to cut the mustard. The question is – why, in practical terms, do you need to be there?
Thus, in the case in question, the practical need was to stabilise the dysfunctional household of the taxpayer’s alcoholic twin sister: the taxpayer ‘spent time reassuring and calming her sister’s children who were very distressed and deeply concerned for their mother: they needed practical support, including cleaning, feeding, comforting and schooling.’ Even then, the Court of Appeal was sceptical as to whether that did indeed amount to ‘exceptional circumstances’ preventing the taxpayer from leaving when she did (describing that as a ‘generous conclusion in her favour’) but felt unable to say that there was no evidence to support the decision of the First-tier Tribunal.
Thus the case shows not only that it is possible that a moral obligation may operate to treat a person as prevented from leaving the UK, but also how difficult it may be to demonstrate that it has done so.
Home >Articles > Statutory residence: but why do you need to be here?
Statutory residence: but why do you need to be here?
The Court of Appeal judgment in A Taxpayer might not be quite the gift for taxpayers that it first appears to be.
In most (not all) circumstances your residency status for a tax year is determined by reference to the number of midnights in the year for which you are physically present in the UK. But in counting midnights, you disregard any (up to a maximum of 60 in any tax year) for which you are here only because of exceptional circumstances beyond your control that prevent you from leaving the UK.
What if there’s no physical or legal impediment to your leaving the UK but you feel, having regard to the circumstances, a moral obligation or obligation of conscience to stay? Can that have the effect that you are ‘prevented’ from leaving the UK?
The Court of Appeal has held (in A Taxpayer[2025] EWCA Civ 106) that, in principle, it can. But it’s far from being the ‘Get out of jail free’ (or perhaps ‘Stay in the UK free’) card that it might at first glance appear to be.
For a start, the test is not purely subjective: it’s not enough that you can honestly say that you consider yourself (subjectively) compelled to stay. It’s a question of whether the circumstances would (objectively) be generally regarded as compelling. That is ultimately a value-judgment for the First-tier Tribunal to make.
The court considered the hypothetical case of an illness of a close relative. Whether the illness compels a person to stay will depend on whether the person ‘is in practical terms obliged to do so’. That, the court tells us, may be ‘a mix of the objective facts (does someone need to be there? is anyone else in a position to do so?) and of [the person’s] subjective sense of moral obligation or obligation of conscience’. One without the other will not suffice.
The reference to ‘need’ and to the obligation ‘in practical terms’ suggests that the test is likely to be passed only if your continued presence in the UK is required in order for you to do something; something, moreover, that cannot reasonably be done by anyone else. It seems unlikely that giving moral, as distinct from practical, support will be enough.
In particular, if merely ‘having to be there’ (as distinct from ‘having to do something’) is not enough, it seems that a perceived moral obligation to be present at the bedside of a seriously ill or dying relative is unlikely, without more, to cut the mustard. The question is – why, in practical terms, do you need to be there?
Thus, in the case in question, the practical need was to stabilise the dysfunctional household of the taxpayer’s alcoholic twin sister: the taxpayer ‘spent time reassuring and calming her sister’s children who were very distressed and deeply concerned for their mother: they needed practical support, including cleaning, feeding, comforting and schooling.’ Even then, the Court of Appeal was sceptical as to whether that did indeed amount to ‘exceptional circumstances’ preventing the taxpayer from leaving when she did (describing that as a ‘generous conclusion in her favour’) but felt unable to say that there was no evidence to support the decision of the First-tier Tribunal.
Thus the case shows not only that it is possible that a moral obligation may operate to treat a person as prevented from leaving the UK, but also how difficult it may be to demonstrate that it has done so.
