Exceptional Circumstances for war-related returns from the Middle East

People coming back from the Middle East to the UK because of the ongoing war with Iran have been worried – and rightly so – that spending too much time in the UK might jeopardize their non UK tax resident status.

The UK Statutory Residence Test (SRT) that we have discussed at length in a previous article counts a “day spent in the UK” primarily by presence in the UK at the end of the day (midnight), but it contains a narrow statutory carve‑out allowing up to 60 days per tax year to be ignored where an individual is in the UK because exceptional circumstances beyond their control prevent them leaving, and they intend to leave as soon as those circumstances permit. Can this carve-out help people coming back to the UK because of the war?

“War” is expressly flagged in statute as an example of circumstances that may be exceptional. HMRC’s internal SRT guidance (now within the Residence and FIG Regime Manual, published/updated 2025) recognises that war/civil unrest and Foreign Office / FCDO travel advice can be relevant indicators; it even gives worked examples in which FCDO advice to avoid all travel supports treating days spent in the UK as exceptional (subject to the 60‑day cap).

The most important judicial guidance is now the Court of Appeal decision A Taxpayer v HMRC [2025] EWCA Civ 106, which restored the First‑tier Tribunal’s conclusion that exceptional circumstances applied. The Court emphasised that the statutory phrase “exceptional circumstances … that prevent” must be assessed as a whole and rejected an overly narrow approach that would exclude “moral” or practical constraints from being part of the relevant circumstances. It treated the question (in many cases) as a fact‑sensitive evaluative judgment for the tribunal, with limited scope for appeal.

For individuals returning to the UK from the Middle East due to war, the critical technical risk is this: the rule is framed around circumstances that prevent leaving the UK, not circumstances that merely cause a return to the UK. HMRC’s guidance says exceptional circumstances “will usually” concern events arising while a person is in the UK, but acknowledges limited cases where a person has “no choice” about coming back. The practical success of a claim therefore depends on showing—day by day—that (i) the person would otherwise have left the UK, (ii) war‑related facts (often evidenced by FCDO advice, flight/airspace disruption, evacuation orders, or employer repatriation policies) actually prevented departure, and (iii) the person left when able.

Evidence is central. The Upper Tribunal had stressed that the claimant bears the burden of proof and must prove each statutory element per day; the Court of Appeal did not remove that burden, but warned against being unrealistically prescriptive where the same compelling constraint continues across consecutive days (for example, a medical restriction lasting weeks).

If HMRC accepts the exceptional circumstances days, it can change the SRT outcome (notably for “leavers” with 3 UK ties near the 45‑day threshold) and can preserve non‑residence; if HMRC rejects them, the taxpayer may become UK‑resident under the sufficient ties test (or meet another test) with potentially large UK income tax and capital gains tax consequences in-year (tempered in some cases by split‑year treatment).

Time limits matter because these are typically asserted through the tax return position (or correspondence). As a practical route, a taxpayer can ordinarily amend a Self Assessment return within 12 months of the normal deadline (statutorily, generally within 12 months of the “filing date”), and if that window is missed, a written claim route such as overpayment relief may be relevant (generally within 4 years after the end of the tax year).

Legal framework and statutory wording

The statutory test in plain terms

Paragraph 22 establishes the basic day-counting rule: if an individual is “present in the UK at the end of a day”, that day counts as a UK day.

There are then two exceptions. The one relevant here (the “exceptional circumstances” exception) applies only if, for the day in question:

• Counterfactual: the individual would not have been present in the UK at the end of that day but for the exceptional circumstances.
• Causation + constraint: the exceptional circumstances are beyond the individual’s control and prevent them leaving the UK.
• Intent: they intend to leave as soon as the circumstances permit.

The statute gives non-exhaustive examples of what may be exceptional, including “war” and other emergencies.

Finally, there is a hard quantitative cap: for each tax year, no more than 60 days can be ignored by relying on the exceptional circumstances rule; once 60 exceptional-circumstances days are reached (counting from 6 April), later days still count even if circumstances continue.

The five cumulative conditions as used by the courts

In the leading litigation, the Court of Appeal treated the paragraph 22(4) test as requiring five cumulative conditions—exceptional, beyond control, “but for” presence, prevention from leaving, and intent to leave as soon as possible—and confirmed it applies to each day relied upon.

This framing is useful because it makes “war-related return to the UK” analysis much more disciplined: you must match your facts to each condition, per day, and then apply the 60-day cap.

What the rule does and does not do

Legally, paragraph 22(4) is part of the “days spent” concept. That means it can reduce the UK day count for SRT elements that depend on UK “days spent”, but it does not automatically neutralise every SRT criterion (for example, some “tie” definitions and some full-time work conditions have their own metrics). HMRC explicitly lists SRT components where exceptional circumstances cannot be taken into account (discussed below).

HMRC guidance and operational practice

HMRC’s published approach is split between:

• RDR3 (public guidance note), which states the SRT is applied year by year and notes explicitly that the UK day count can be “reduced to take into account days spent in the UK due to exceptional circumstances” (with a pointer to the manual).
• Detailed internal manual pages in RFIG22210 onwards, which provide examples and boundary lines, and—importantly for war scenarios—explicitly discuss Foreign Office/FCDO advice.

HMRC’s working definition of exceptional circumstances

HMRC’s manual states that days “may be ignored” if presence is due to “exceptional circumstances beyond their control”, usually events arising while the person is in the UK that prevent leaving, and that the situation must be beyond the person’s control. It includes war among examples likely to be exceptional.

HMRC also adds a key limitation that often drives disputes: the event must be one the person “has no control or influence” over and “cannot reasonably have been foreseen”. This matters for “voluntary return” cases: if the person returns to the UK early as a precaution when the relevant risk was already apparent (or travel advice already elevated), HMRC may argue the later UK presence was foreseeable and therefore not “exceptional” for the purposes of paragraph 22(4).

Which SRT elements can be helped by exceptional circumstances

HMRC’s manual confirms that exceptional circumstances days can be deducted (subject to the 60‑day cap) when calculating the UK day count relevant to the first and second automatic overseas tests, the first automatic UK test, and the sufficient ties test.

HMRC also confirms the 60‑day cap is a limit, not an allowance—i.e., you do not “get 60 days free”; you must still prove paragraph 22(4) conditions for each day.

HMRC further notes that exceptional circumstances can affect split-year treatment by reducing the UK day count in relevant split-year tests (including specified “arriver” split-year cases), again subject to the cap.

Which SRT elements cannot be helped by exceptional circumstances

HMRC lists several SRT tests/definitions where you cannot discount days for exceptional circumstances. This is a common pitfall because taxpayers sometimes assume that once a day is “exceptional”, it is ignored everywhere.

Key examples HMRC lists as not allowing deduction include:

• the second automatic UK test home/day presence metrics,
• the third automatic UK test full-time UK work metrics,
• the third automatic overseas test (including “significant break” conditions),
• certain elements of full-time work calculations and gaps between employments,
• the work tie (days with >3 hours work),
• and other tie conditions including the accommodation tie and child‑related day-count conditions,
• plus the deeming rule (a separate mechanism that can increase UK day count).

Operationally, this means a war-driven stay might successfully reduce your “days spent” total, but you could still become UK resident because you met a non-day-count condition (for example, full-time UK work) that cannot be “fixed” by paragraph 22(4).

HMRC’s specific guidance on Foreign Office/FCDO travel advice and war

HMRC’s manual draws a careful distinction. Exceptional circumstances will “generally not apply” to events that bring the person back to the UK. However, HMRC accepts there may be circumstances (including civil unrest/natural disaster) where the relevant Foreign Office advice is to avoid all travel to a region; in that situation, individuals who return to and remain in the UK while advice remains at that warning level would “normally” have those UK days ignored under the SRT, subject to the 60-day cap.

HMRC then gives an explicit war example referencing the Russia–Ukraine conflict and associated Foreign Office advice against travel, concluding that such war-related circumstances are considered “exceptional” for SRT purposes and that individuals returning to the UK “as a direct result” of war would normally have UK days ignored, again subject to the 60-day limit. HMRC also cautions that geopolitical developments “may far exceed” Foreign Office advice, and individuals should consider wider warnings and reasons as well.

For taxpayers returning from the Middle East due to war, these passages are among the most directly relevant “HMRC-authored” materials available, because they describe the mechanism by which external travel advice can support a paragraph 22(4) claim, while also warning that FCDO advice is not the only relevant evidence.

Published HMRC manuals and transparency gaps

HMRC’s exceptional circumstances guidance exists in multiple pages, and at least one “overview” page indicates some content is withheld under Freedom of Information exemptions. Practically, that means taxpayers and advisers should treat the publicly visible HMRC manual pages as necessary but not necessarily complete, and should be prepared for HMRC to apply internal compliance approaches not fully visible externally.

Case law and tribunal decisions

There is now a clear “spine” of leading authority on paragraph 22(4):

• Upper Tribunal (TCC): HMRC v A Taxpayer [2023] UKUT 182 (TCC)
• Court of Appeal (Civil Division): A Taxpayer v HMRC [2025] EWCA Civ 106 (which restored the FTT outcome).

Even though the facts were not war-related, these decisions matter for war cases because they interpret the core statutory words “exceptional circumstances” and “prevent”.

Upper Tribunal approach in HMRC v A Taxpayer [2023]

The Upper Tribunal agreed that paragraph 22(4) sets cumulative conditions that must all be satisfied.

On meaning, the UT adopted an “objective” approach, using Lord Bingham’s ordinary-language definition of “exceptional” (from a different context) as a “good working definition” for paragraph 22(4), and it emphasised the statutory examples (war/emergency; sudden life-threatening illness) are objectively verifiable.

Most controversially, the UT treated “prevent” as meaning stopping something or making an intended act impossible, distinguishing it from mere hindrance and drawing support from insurance causation language.

On evidence and burden, the UT stated plainly:

• the person claiming paragraph 22(4) bears the burden of proving each statutory condition for each day in issue, and
• if the tribunal cannot make those findings because evidence is insufficient, the appeal must fail.

This part of the UT decision remains practically important even after the Court of Appeal, because it reflects the default procedural reality of tax appeals: claims are won or lost on evidence and daily causation. But the Court of Appeal subsequently rejected aspects of the UT’s restrictive substantive interpretation.

Court of Appeal approach in A Taxpayer v HMRC [2025]

The Court of Appeal treated paragraph 22(4) as requiring the same five conditions and confirmed it is day-specific.

However, it rejected the UT’s attempt to split the concept into “objective facts” versus “moral obligation”, emphasising that the statutory question is whether there are “exceptional circumstances … that prevent” leaving and that this is a composite phrase to be assessed holistically.

Crucially for real-world war cases, the Court held that “prevention” is an evaluative judgment for the First-tier Tribunal: circumstances can include the person’s reaction to events, and whether the circumstances truly “prevented” leaving can consider whether the reaction is reasonable and aligned with ordinary societal expectations rather than idiosyncratic.

On appellate standards, the Court explained at length that where Parliament uses ordinary English words in their ordinary sense, whether proven facts fall inside that concept is generally a fact/evaluation question for the fact-finding tribunal, and an appellate court’s ability to interfere is limited (invoking authorities on evaluative judgments and “no reasonable tribunal” style limits).

On the day-by-day requirement, the Court accepted that paragraph 22(4) must be applied to each day, but cautioned against rigid insistence on an itemised timeline in cases where the same compelling reason persists daily; it gave examples where if the conditions are satisfied at the start of a continuous period (e.g., medical advice not to travel until a cast is removed), they may obviously continue day after day. It also endorsed the practical idea that tribunals should often ask what changed when the taxpayer did leave, because that can shed light on whether they were previously prevented.

Practical judicial takeaways for war-related SRT claims

The combined effect is:

• The statutory words still impose real constraints: “but for” causation, “beyond control”, actual prevention, and intention to leave remain mandatory.
• “Prevent” is not limited to physical impossibility, but tribunals will evaluate whether the circumstances were sufficiently compelling; reasonableness and societal expectations can matter.
• Tribunals need to be satisfied that the relevant constraint existed on each day, but evidence need not always be a minute-by-minute diary if the same crisis clearly persists.

There is (as of this writing) no prominent reported UK tax tribunal decision applying paragraph 22(4) to a Middle East war evacuation scenario; therefore, applying the rule to those facts remains a matter of disciplined statutory analysis plus HMRC guidance analogies, with residual uncertainty.

Interaction with FCDO travel advice and archived advisories

Why FCDO travel advice matters in paragraph 22(4) cases

Neither paragraph 22(4) nor the Court of Appeal makes FCDO advice a formal legal prerequisite. The statutory question is factual: did exceptional circumstances beyond control prevent leaving the UK?

But HMRC’s operational guidance explicitly uses Foreign Office/FCDO advice levels as a strong indicator of when travel disruption/danger is sufficiently serious. The manual’s key proposition is that where advice is to avoid all travel to a region, individuals who return to and remain in the UK while that advice persists would normally have those days ignored (subject to the cap).

For Middle East war scenarios, this is practically crucial because it suggests an evidential path: show (i) the relevant FCDO warning level, (ii) that you would have left the UK (typically to return to your overseas home/work), but (iii) that doing so was not realistically possible/acceptable given the severity of the risk, cancellations, or restrictions.

When absence of strong FCDO advice creates uncertainty

War-related disruptions do not always map neatly onto a single “avoid all travel” country-wide warning. FCDO advice may sometimes be:

• region-specific (only certain provinces/border areas),
• time-lagged (updated after events on the ground), or
• framed as “advise against all but essential travel” rather than “advise against all travel”.

HMRC’s manual example is anchored to the highest-level warning language (“avoid all travel”), so where FCDO advice is weaker or absent, the taxpayer must rely more heavily on other objective evidence (airspace closure notices, airline cancellation proof, employer/insurer prohibitions, embassy instructions, evacuation orders, etc.). HMRC itself notes that world events and government actions can exceed FCDO advice and that wider reasons and warnings should be considered.

How to check country-specific FCDO advice and preserve historic evidence

Because paragraph 22(4) is day-specific and travel advice can change quickly, preservation of what the advice said at the time can be decisive. The practical process is:

• Check the relevant country/region advice on the official GOV.UK foreign travel advice pages (current advice).
• If your claim is retrospective (common), locate archived snapshots showing the advice level in the relevant period.

The UK Government Web Archive provides archived captures of government web content, including the foreign travel advice entry point. The archive provides guidance on how to access an archived page from a live website (useful where you need to demonstrate the content as of a given date).

In practice, a robust evidence pack for a war-related SRT claim should include:

• dated screenshots/PDF prints of the relevant FCDO advice (and archive links where used),
• a timeline of advice changes versus your travel intentions and actual travel, and
• documentary proof tying your inability/unwillingness to travel to those conditions (e.g., employer prohibition tied to FCDO level).

Practical application, evidence, time limits, consequences, and risk mitigation

Scenarios table: war-related returns from the Middle East

The table below is necessarily indicative because paragraph 22(4) is intensely fact-specific, and there is no reported “Middle East evacuation” decision directly on point. The “likely outcome” column reflects (i) the statutory conditions, (ii) HMRC’s war/FCDO examples, and (iii) the Court of Appeal’s approach to “prevention” as an evaluative judgment.

Burden of proof and evidence standards

In tax disputes, the practical evidential burden sits on the taxpayer asserting paragraph 22(4). The Upper Tribunal stated clearly that the person claiming the relief has the burden of proving each statutory condition for every day in issue, and if evidence is insufficient the appeal must be dismissed.

The Court of Appeal did not endorse a requirement for an “itemised timeline” in every case, but it did uphold the need for the tribunal to be satisfied that the condition persisted on each day, and it considered it often helpful to examine what changed when the taxpayer finally left (because that illuminates whether they were previously prevented).

A practical war-case evidence checklist that maps to the five statutory conditions is:

• Evidence of planned departure (“but for”): tickets, emails arranging return, work rosters overseas, tenancy/utility evidence of overseas home, school attendance abroad.
• Evidence of exceptional event + beyond control: official security alerts, evacuation instructions, embassy messages, employer crisis memos, contemporaneous news extracts; statutory war example supports classification but does not replace proof.
• Evidence the event prevented leaving: flight cancellations, airspace closure notices, insurer refusal, employer travel ban tied to objective risk/FCDO advice; if the issue is practical/moral (family safeguarding), document why leaving was not realistically possible and why alternatives were not available, anticipating the Court of Appeal’s “reasonableness/societal expectations” lens.
• Evidence of intent to leave ASAP: demonstrate steps to depart when conditions eased. HMRC’s examples treat travel immediately after the constraint lifts as powerful evidence of intent.
• Cap tracking: maintain a running count of exceptional-circumstances days—after 60, additional days count regardless.
• Time limits and retrospective claims routes

Most paragraph 22(4) positions arise through how you file and support your residence status for a tax year under the SRT.

If you need to correct a Self Assessment return, GOV.UK guidance says you can correct a return within 12 months of the Self Assessment deadline. Statutorily, Taxes Management Act 1970 s 9ZA provides that an amendment may not be made more than 12 months after the “filing date”.

If you miss that correction window, GOV.UK says you generally need to write to HMRC, including to claim overpayment relief, and states that overpayment relief can be claimed up to 4 years after the end of the tax year it relates to. HMRC’s Self Assessment Claims Manual also states the time limit for overpayment relief claims is within 4 years after the end of the relevant tax year/accounting period.

For war-related exceptional circumstances, the key practical point is that by the time you realise the day-count impact, FCDO advice and airline evidence may have changed—so contemporaneous record‑keeping and archived advice snapshots (via the UK Government Web Archive) can be decisive.

Residence/tax consequences if accepted or rejected

Because the SRT can turn on small numbers of days (especially for “leavers” close to 45 days under the sufficient ties table), the acceptance/rejection of even a handful of exceptional circumstances days can flip the result. The Court of Appeal case itself illustrates that a taxpayer with 3 UK ties was resident if above 45 days and non-resident if at or below, making the paragraph 22(4) analysis decisive.

If exceptional circumstances days are accepted, the individual’s UK “days spent” count is reduced for those SRT components that allow the deduction (subject to HMRC’s list), which can preserve non-residence or alter split-year outcomes.

If they are rejected, the unadjusted UK day count applies; depending on ties and other tests, the person may become UK resident for the year (or remain resident). Where UK residence results, RDR3 emphasises the SRT generally treats you as resident “for a tax year and at all times in that tax year” if the tests are met, subject to split-year rules.

Taxpayer risk mitigation steps for Middle East war scenarios

A risk-managed approach is to treat paragraph 22(4) as “break glass in emergency” rather than something to plan to use.

• Build a day-count buffer: The Court of Appeal case demonstrates that a small overrun can be catastrophic. Avoid planning to land exactly on a threshold day count.
• Pre-document intent and counterfactual travel: Where assignments are in volatile regions, keep forward travel bookings, rotation schedules, and written travel plans. Paragraph 22(4) requires showing you would not have been in the UK at midnight “but for” the circumstances.
• Snapshot FCDO advice and changes: If relying on travel advice, capture dated copies and archive links because advice evolves; HMRC explicitly references Foreign Office advice levels in its examples.
• Map evidence to each of the five conditions: Use the five-condition checklist from the Court of Appeal and ensure each item is supported for the run of days claimed.
• Be ready to explain “what changed when you left”: The Court of Appeal considered this usually helpful, and it is a natural HMRC enquiry question.
• Watch the “cannot deduct” traps: If you might meet a test that ignores the exceptional-circumstances deduction (notably UK home or UK work patterns), you need a broader residence strategy; HMRC lists these explicitly.
• Consider split-year and treaty interaction early (specialist advice): RDR3 highlights split-year treatment as a separate layer; in high-value years, even if you become UK resident under domestic SRT, treaty tie-break and split-year analysis can materially change outcomes.

Key uncertainties and gaps

There is limited published, war-specific tribunal litigation applying paragraph 22(4) to evacuation/repatriation from conflict zones; most binding judicial guidance comes from a non-war factual matrix (family crisis). Consequently, applying the Court of Appeal’s “prevention” reasoning to war cases is principled but not directly tested.

HMRC guidance indicates at least some exceptional circumstances material is withheld under FOIA exemptions, so external readers cannot fully verify all internal compliance criteria.

FCDO travel advice may be absent, partial, or ambiguous for particular Middle East locations or time windows; HMRC acknowledges real-world events can exceed travel advice, but the evidential burden then shifts more heavily to other objective proof.