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05-2-2016 9:34 pm  #1

Hearing at UT yesterday

Like most people who have won in condemns, but seen a cert 144 issued I was left out of pocket by several hundred quid mainly due to cost of replacing goods while the condemns were still pending. After all, In the circumstances under which the seizure was made, it was scarcely feasible to merely turn round, sail back to Belgium, and replace all the goods. 

Therefore, despite succeeding in condemns, I maintained my appeal in the tribunal (FTT) against the refusal to restore the goods. In those proceedings I attempted to raise the following issues. 

The reasons for seizure presented in the PCAL were as follows: 

You exceeded the guidelines
Your declared income is not consistent with your expenditure on excise goods
You failed to convince the BF officer that your trips and purchases were credible. 

1. Given that the first and third of these reasons would appear to be invalid, were the BF entitled to assume that the seizure was lawful when making the decision on restoration?

2. If they were, were they entitled to assume that all the goods were held for commercial purpose or merely that some of them were?

3. If they were to consider that some of the goods were for own use should they have restored those goods?

4. Was the fact that there was evidence that the BF had not followed proper procedures at the time of seizure of any relevance to restoration.? 

The power of the FTT in this situation is limited to making a declaration under 16(4)(c) of Finance Act 1994.

 (c)in the case of a decision which has already been acted on or taken effect and cannot be remedied by a further review, to declare the decision to have been unreasonable and to give directions to the Commissioners as to the steps to be taken for securing that repetitions of the unreasonableness do not occur when comparable circumstances arise in future. 

By making such a declaration, I had hoped at the very least that the FTT would clarify the issues that could be considered in a restoration appeal. I also intended to explore (although this is outside the jurisdiction of the FTT) that if the decision to refuse restoration could be shown to have been unreasonable, would it then be possible to argue that this would, in itself, represent an unlawful interference with the goods which would not be covered by cert 144?  Would it then be possible to pursue an action in tort in the county court?

 Although the FTT “allowed” my appeal, it simply evaded all the above issues and declined to make any directions under 16(4)(c). (The decision can be found on baillii and is very similar to the decision made in Young v Home Office  )

Leave to appeal was refused. I then applied to the Upper Tribunal for permission to appeal. This was refused on the papers by a judge of the UT. I then applied for reconsideration of my application at an oral hearing. This was heard yesterday via telephone link at Court 24 Royal Courts of Justice, The Strand, London 

As I had been annoyed by the peremptory manner in which the UT judge had dismissed my application as well as the previous handling of the appeal by the FTT, shortly before the hearing I sent an email to the UT which contained some rather sarcastic criticisms of the UT judge's decision. It was therefore with a sickening feeling of having put my big clumsy foot well and truly in it, when I discovered that the same UT judge would hear my oral application. I was fully expecting to be sent on my way in a matter of minutes with a summary “**** ***!!!”

 However things went a little better than expected. Fortunately the good judge appeared not to have taken offence at my injudicious remarks and was sympathetic, understanding and polite at all times. Th hearing itself lasted nearly an hour. 

At the end of the hearing, the Judge reserved his decision, but saw fit to warn me that were the application to succeed and the case proceed to a full hearing, that costs can be awarded against an unsuccessful party (apparently the costs rules are different in the UT) 

There is no further right of appeal against a refusal of leave to appeal by the UT and therefore if the application fails I will have exhausted all the statutory remedies. Next step could then  perhaps be an appeal to the ECHR or at least a complaint to European commission.  

Last edited by turbulentupstart (05-2-2016 9:40 pm)


07-2-2016 8:34 am  #2

Re: Hearing at UT yesterday

Kudos to you Turbulent, any idea how long you have to wait for the decision?


08-2-2016 8:36 pm  #3

Re: Hearing at UT yesterday

It should be in the next week or so.

     Thread Starter

16-2-2016 8:20 pm  #4

Re: Hearing at UT yesterday

No joy here I'm afraid.

Permission to appeal refused. Judge acknowledged the points I raised regarding the PCAL. On the telephone, he also acknowledged (or appeared to acknowledge) that the BF were not bound to assume the seizure was lawful, but concluded nevertheless that they were “entitled” to do so, stating that “the question of restoration only arises where goods have been lawfully seized ...” The “logic” of this statement appears to be that the BF, when considering restoration, must either pretend that the seizure has been judged lawful or wait until the goods have been condemned. I searched the decision notice in vain for any judicial authority for this extraordinary proposition. 

What is really interesting about this decision is the issues that the judge evaded altogether. Condemnation of the goods (whether actual, deemed or assumed) does no more than establish that some of the goods were held for commercial purpose. Any goods imported for personal use that are “mixed, packed or found” with those goods are also condemned. Both this judge (who also sits in the FTT) and the FTT judge, when considering appeals against duty assessments/penalties have wrongly assumed that forfeiture establishes that all goods were held for a commercial purpose. It does not. 

The issue regarding procedural irregularity was also evaded. The BF made their decision on the basis that the goods were held for commercial purpose According to EU law, before it can be asserted that the goods were not for own use, a proper, impartial “A to J” assessment of the importation must be conducted. The BF can neither be deemed nor assumed to have conducted such an assessment, they must be able to demonstrate that they have done so. Here it was plainly obvious from the officer's notebook that, at the time of seizure, a proper such interview had not been conducted. This issue has also recently been raised in the FTT. (see Ayre v HMRC at [16] and Lewis v HMRC at [23](3)) 

In short if the judge had granted permission to appeal it might have exposed the errors he and the FTT judge have made in previous decisions and that would never do, I suppose.

 I intend to comment in more detail in the near future on the quite extraordinary manner in which this appeal was handled by the FTT and the conduct of a certain judge (now retired) in particular.

Well, onwards and upwards I suppose.

Last edited by turbulentupstart (16-2-2016 8:29 pm)

     Thread Starter

16-2-2016 9:17 pm  #5

Re: Hearing at UT yesterday

I must admit I do find the restoration procedure extremely complex. There seems to be so many variables and different routes to use. And of course up to Tribunal it's all in house.

Please ensure you do not divulge any information which could identify you as Border Force will use your posts here as evidence against you in court.


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