Taras Ivanchuck v The Director of Border Revenue [2026] UKFTT 229 (TC)

[2026] UKFTT 00229 (TC)Case No TC09773
FIRST-TIER TRIBUNAL
TAX CHAMBER
Hearing Heard on: 25 and 26 November 2025Date Judgment date: 22 January 2026
Taylor House
London
Appeal reference: TC/2023/00466
RESTORATION OF SEIZED GOODS-Strike out application-permitted grounds of appeal-Choice and application of policy-Commercial or private-exceptional hardship-proportionality-was the reviewing officer’s decision “unreasonable” within section 16(4) Finance Act 1994
Before
TRIBUNAL JUDGE MARILYN MCKEEVERMR MANU DUGGALL JP
Between
TARAS IVANCHUKAppellantTHE DIRECTOR OF BORDER REVENUERespondentMiss Valentina Kolentsova, solicitor for AppellantMr Simon Ridding of counsel, instructed by the General Counsel and Solicitor to HM Revenue and Customs for RespondentDECISION

Introduction

[1]Mr Ivanchuk appeals against the decision of the Respondent (“Border Force”) refusing to restore his Mercedes Sprinter Van, registration number BO 1826 E (the “van”) which was seized at Dover on 8 December 2021.[2]Border Force seized the van on the grounds that it had been adapted for the purpose of concealing goods.[3]Border Force refused to restore the van as, under its commercial restoration policy, it does not restore goods in these circumstances.[4]The Appellant challenged the refusal to restore on twelve grounds which we discuss below.[5]Border Force applied for the appeal to be struck out under Rule 8(2) of the Tribunal Procedure (First Tier Tribunal) (Tax Chamber) Rules 2009 (“the Rules”) either under Rule 2(a) on the basis that the Tribunal does not have jurisdiction or under Rule 2(c), on the basis that there is no real prospect of the appeal succeeding.[6]As a result of this, the Tribunal had directed that the strike-out application should be dealt with at a hearing but that, if the strike-out application was refused, the substantive appeal should be decided at the same hearing.[7]We considered the strike-out application, but before discussing this we will set out the legal framework which applies and our findings of fact.[8]Mr Ivanchuk does not speak English and participated in the hearing via an interpreter, for whose assistance we are grateful.

The legal framework

[9]The van was seized under section 88 of the Customs and Excise Management Act 1979 (“CEMA”) which provides:
“Forfeiture of ships, etc for certain offences 88 Forfeiture of ship, aircraft or vehicle constructed, etc for concealing goods Where— (a) a ship is or has been [in United Kingdom waters]; or (b) an aircraft is or has been at any place, whether on land or on water, in the United Kingdom; or (c) [any other vehicle] is or has been within the limits of [any port, railway customs area or aerodrome] or, while in Northern Ireland, within the prescribed area, while constructed, adapted, altered or fitted in any manner for the purpose of concealing goods, that ship, aircraft [or other vehicle] shall be liable to forfeiture.”

Where—

[10]A person who wishes to challenge the legality of the seizure must make a claim within one month under paragraph 3 of schedule 3 of CEMA, which provides:
“3 Any person claiming that any thing seized as liable to forfeiture is not so liable shall, within one month of the date of the notice of seizure or, where no such notice has been served on him, within one month of the date of the seizure, give notice of his claim in writing to the Commissioners at any office of customs and excise.”
[11]Such a claim must be pursued in the Magistrates’ Court. Paragraph 5 of schedule 3 of CEMA sets out the consequences of failing to make a claim within the time limit. “Condemnation 5 If on the expiration of the relevant period under paragraph 3 above for the giving of notice of claim in respect of any thing no such notice has been given to the Commissioners, or if, in the case of any such notice given, any requirement of paragraph 4 above is not complied with, the thing in question shall be deemed to have been duly condemned as forfeited.”[12]The effect of this is that if there is no challenge to the seizure in the Magistrates’ Court, the item seized is deemed to have been duly, i.e. legally forfeited. The one month time limit is strict. It cannot be extended. Once the seized item has been duly condemned, the claimant can no longer argue that the item should not have been seized, that is he cannot argue that it was illegally seized.[13]The only remaining remedy is to apply to HMRC requesting restoration of the item under the discretionary powers in section 152(b) CEMA which provides:
“The Commissioners may, as they see fit- … (b) restore, subject to such conditions (if any) as they think proper, any thing forfeited or seized under [the customs and excise Acts, which includes CEMA)”
[14]Under section 14 Finance Act 1994, a person affected by the decision may require HMRC to review the decision under section 152(b).[15]An appeal lies to the Tribunal under section 16 Finance Act 1994 against the review decision. Section 16, so far as material, provides:
“16Appeals to a tribunal. (1) An appeal against a decision on a review under section 15 (not including a deemed confirmation under section 15(2)) may be made to an appeal tribunal within the period of 30 days beginning with the date of the document notifying the decision to which the appeal relates. (2) An appeal under this section with respect to a decision falling within subsection (1) … shall not be entertained unless the appellant is the person who required the review in question. (3) … (4) In relation to any decision as to an ancillary matter, [which includes a decision under section 152(b) CEMA] or any decision on the review of such a decision, the powers of an appeal tribunal on an appeal under this section shall be confined to a power, where the tribunal are satisfied that the Commissioners or other person making that decision could not reasonably have arrived at it, to do one or more of the following, that is to say— (a) to direct that the decision, so far as it remains in force, is to cease to have effect from such time as the tribunal may direct; (b) to require the Commissioners to conduct, in accordance with the directions of the tribunal, a review or further review as appropriate] of the original decision; and (c) in the case of a decision which has already been acted on or taken effect and cannot be remedied by a review or further review as appropriate] , 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. … (8) Subject to subsection (9) below references in this section to a decision as to an ancillary matter are references to any decision of a description specified in Schedule 5 to this Act which is not comprised in a decision falling within section 13A(2)(a) to (h) above. …”
[16]Section 14(6) of the Finance Act 1994 provides that the burden of proof is on the Appellant to show that the grounds on which any appeal is brought have been established.[17]Section 16 confers supervisory powers only on the Tribunal. That is to say, the Tribunal can consider only if HMRC’s decision was “reasonable” and if they find it was not reasonable, its powers are limited to those set out in section 16(4) above.[18]It is well established that “unreasonable” in this context means unreasonable according to the test in the Court of Appeal case of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1KB 223 (Wednesbury). See, for example, McGeown International Limited v HMRC [2011] UKFTT 407 (TC) at [45] and [46].[19]Wednesbury unreasonableness means that in making the decision the review officer:(1) Erred in law(2) Took irrelevant matters into consideration(3) Failed to take account of relevant matters; or(4) Reached a decision that no reasonable office could have made.[20]In considering the reasonableness of a decision, this Tribunal is entitled to carry out a comprehensive fact-finding exercise in any appeal. We are able to satisfy ourselves that the primary facts upon which Border Force base their decision in a restoration case are correct. This means that we may establish and take into account all the facts, and in the light of those facts, determine whether the review officer’s decision was reasonable, even if some of the facts were not before the review officer when he took the decision. This is clear from the Court of Appeal decision in Balbir Singh Gora and Others v Commissioners of Customs and Excise [2003] EWCA Civ 525 (Gora) at [38] and [39],

The facts

[21]We derive the facts from the written evidence in the Bundle of Documents, the oral evidence at the hearing from Mr Ivanchuk, the unchallenged witness evidence of his friend, Mr Kozak, the unchallenged witness evidence of his employer, Mr Shafransky and the evidence given by Officer Summers of HMRC. A witness statement was also made by another friend of Mr Ivanchuk, Mr Huzar, but he did not attend the hearing for cross-examination and so we attach less weight to his evidence. Having said that, Mr Huzar’s evidence covered similar ground to that of Mr Kozak.[22]We make additional findings of fact in the discussion section of this decision.

Background to the UK trip

[23]Mr Ivanchuk was employed as a freight-forwarding driver by Mr Shafransky. His employment began on 11 January 2021 and ended on 22 August 2025. Mr Shafransky ran a road freight and logistics company, but after he relocated to the United States in late 2024, he was unable to continue to run his business at a distance and had to close it down.[24]Mr Shafransky was unable to pay high wages and Mr Ivanchuk was only paid when there was work for him to do. His official salary was 6,700 UAH a month which is approximately £300 at the conversion rate at the time of writing this decision. As he could only work part of the time, his salary before the seizure was less than this-about £160-170 per month.[25]Between 17 October 2022 and 23 December 2022 Mr Shafransky sent Mr Ivanchuk on an assignment to gather humanitarian aid from various EU countries to assist civilians affected by the war in Ukraine. Mr Ivanchuk used vehicles provided by Mr Shafransky and at no time did he use the van in the course of his employment.[26]When Mr Ivanchuk came to the UK to collect aid, which was less than once a month, Mr Shafransky would pay Mr Ivanchuk an additional £20-30 per trip because of the higher costs.[27]Mr Ivanchuk, Mr Kozak and Mr Huzar, who all worked for Mr Shafransky, occasionally supplemented their wages by making short trips to the UK during their annual leave in order to work on construction sites. In December 2021, all three took annual leave in order to travel together to the UK to obtain work for two weeks in the run up to Christmas and to visit friends.[28]In 2019, Mr Ivanchuk purchased the van, having sought Mr Shafransky’s opinion of the van before he bought it. The van contained a foldaway sleeping bench with a mattress, which had been installed by the seller. There was a zipped compartment in the mattress with access to a wooden box about five feet long, three feet wide and three inches deep.[29]Ms Donaldson emphasised Mr Ivanchuk’s and Mr Kozak’s evidence that this was visible on looking into the back of the van. She also pointed out that a Certificate provided by the Ukrainian authorities on the purchase of the van also stated that “access to [the box] is in visual visibility, the box can be zipped, which allows to use it for safe transportation of any documents and own funds and their safe storage (sic).”[30]The visibility of the zip/box and the actual or intended use is not relevant to the restoration appeal as these facts go to the legality of the seizure.[31]Although a van would normally be used as a commercial vehicle in the UK we heard evidence, which we accept, that in Ukraine, it was common for people to use vans as personal vehicles and Mr Ivanchuk confirmed that he had preferred to buy a van rather than a car as his personal vehicle. Owing to the wartime situation in Ukraine, it was helpful to be able to carry large items as well as using to transport himself and his family. Before the seizure, he had used it, for example, to take his children the six or seven miles to school and nursery.[32]Mr Ivanchuk purchased the van with the assistance of an interest-bearing loan of $30,000. The lender was a private individual introduced to Mr Ivanchuk by Mr Kozak. The loan was the subject of a loan agreement which provided that the van could only be use for private purposes and it was secured by a pledge of the van. Both the Loan and the Pledge were formal documents signed before witnesses. Loan payments of $400-500 a month were made initially. Mr Ivanchuk could not afford these payments himself. His mother had helped him make them. The amount outstanding at the date of the hearing was $19,500. Mr Ivanchuk is unable to pay this amount.

The Seizure

[33]On 8 December 2021 Mr Ivanchuk and Mr Huzar travelled to the UK in the van. Mr Kozak travelled with them in his own car. The van was towing a trailer. The van and trailer contained packages which had been given to them by friends in the Ukraine to be delivered to friends and relatives in the UK. The packages contained beer (73lt), wine (26lt), mostly home made in plastic bottles, and spirits (4.75lt).[34]Mr Ivanchuk said these items were gifts and were not for resale and that he was not paid for delivering the gifts. This was corroborated by Mr Kozak.[35]On arrival in Dover, Mr Ivanchuk drove in the Freight Lane and was stopped by Border Force. Officers searched the van and seized the alcohol. The seizure was not challenged, and the alcohol was duly condemned as forfeit. No application has been made for restoration of the alcohol. This was a separate seizure from the seizure of the van and was made under a different provision of CEMA.[36]Copies of the notebooks of the two officers concerned were contained in the Document Bundle. The extracts we saw did not refer to the alcohol.[37]The first officer’s notebook indicated that he asked Mr Ivanchuk a few basic questions. He was told they were travelling to London, that the purpose of the trip was “post” and that it was a regular trip. He asked colleagues to look at the vehicle. He records that Officer Bunting informed him that he had detected an “empty concealment” within the rear passenger bunk. The van was then formally seized under section 88 of CEMA.[38]Officer Bunting’s notebook indicated that he noted that the bunk’s wooden frame seemed unusually deep. He took it apart and revealed “what I believe to be a purpose-built concealment”.[39]None of Mr Ivanchuk, Mr Kozak and Mr Huzar spoke English. It seems that the Officer tried to use a translation app on his phone to communicate, but this produced meaningless translations and Mr Ivanchuk could not use the Officer’s phone to reply as it did not have Cyrillic script. Mr Ivanchuk did not understand what the officer was saying and was given no real opportunity to explain the purpose of the visit. The officer did not provide an interpreter and would not allow Mr Ivanchuk to obtain assistance from another traveller who spoke Ukrainian and English.[40]It is common ground that the compartment was empty. Mr Ivanchuk had used it to hold a folder containing documents and money when he stopped for fuel or at a service station. He was holding the folder during the search in case the documents were needed.[41]The Officer asked additional questions which were not in the extracts from the notebooks in the bundle. The officer asked why Mr Ivanchuk had made the compartment and what he had put in it. It was impossible for Mr Ivanchuk to explain this because of the language barrier.[42]Border Force required him to sign various documents before he could leave. He eventually signed them although he did not understand what the documents said.[43]Border Force provided him with a Seizure Information Notice and Notice 12A which explains how to challenge the legality of the seizure.

Events following the seizure: involvement of Sterling Law

[44]On the day of the seizure Mr Ivanchuk contacted Sterling Law Solicitors (Sterling Law) which had Ukrainian speaking staff, for advice. Following a meeting, Sterling Law advised him to dispute the legality of the seizure in the Magistrates’ Court, and he signed the Notice of Claim required. Sterling Law also undertook to submit a request for restoration to Border Force.[45]Sterling Law did not challenge the seizure in the Magistrates’ Court within the time limit and, as set out above, that means that the van was duly forfeited under section 88 CEMA on the basis that it was “constructed, adapted, altered or fitted in any manner for the purpose of concealing goods…”. It is not now possible to challenge the legality of the seizure or argue that the compartment was not concealed or that it was not for the purpose of concealing goods.[46]Despite requests for updates, Sterling Law provided no information to Mr Ivanchuk. They had, however, been in correspondence with Border Force which ultimately led to the review decision under appeal.[47]Between 17 October and 23 December 2022, Mr Ivanchuk was gathering humanitarian aid throughout Europe and he only found out about the review decision on his return to Ukraine. He was unaware of the correspondence between Sterling Law and Border Force, and he discovered that Sterling Law had provided inaccurate information to Border Force which he had not authorised or approved.[48]On 8 January 2022, Sterling Law wrote to Border Force. The letter was headed “Restoration Request” and enclosed various documents including Mr Ivanchuk’s authority letter but did not make any request.[49]Border Force responded on 13 January 2022 with a request for further information. The letter assumes that they are dealing with a commercial situation involving the carriage of goods. The letter states:
“When considering the restoration of commercial vehicles, Border Force with consider…the involvement of the owner/haulier; this will include the steps taken by the haulier to prevent their vehicles being used to carry smuggled goods...”
[50]It then set out a series of questions:
“ 4. [1-3 were not relevant] Copies of any instructions or written procedures that your client issues to drivers or other staff to prevent them from smuggling. 5. Details of how your client obtained the contract to carry the goods. 6. The checks that your client made of the consignor. 7. The arrangements made to collect the goods from the consignor and load them onto your client’s vehicle. 8. Details of any physical checks made of the load and the application of any seals. 9. The checks your client made of the consignee. 10. The arrangements made to deliver the goods to the consignee. 11. Details of any other measures your client takes to prevent their vehicles being used for smuggling. …This is your client’s opportunity to bring to our attention anything else that your client should like us to consider in support of the restoration request.”
[51]Sterling Law replied four months later, on 15 May 2022. Although the letter addressed Border Force’s questions, it answered them as if Mr Ivanchuk was a regular carrier of goods and focussed entirely on the alcohol which was seized. The parcels were described as “goods”, the friends as “clients” and Mr Ivanchuk was described as the “driver-owner and operator of his vehicle”.[52]The letter also stated that Mr Ivanchuk had completed CMR notes upon loading the packages in the Ukraine. The CMR document is a standard form which acts as a standard contract for businesses transporting goods across international borders by road. The documents to which Sterling Law referred were not CMRs. The translation from Ukrainian in the Bundle of the heading was “Consignment Note” although Ms Donaldson (a Ukrainian speaker) said a better translation was simply “notes”. In any event, the documents were not CRM documents or any sort of official transport documents. They were simply notes of who was due to receive what. The notes included phone numbers, names (often just a first name), what bag? (e.g. box, plastic bag, grey bag, blue box) and a notes column. There was also a column headed “how many, Kg”. There were numbers against some of the entries which could not have been weights. Mr Ivanchuk was not sure what the number were (although we note they were his documents).[53]Sterling Law further said that Mr Ivanchuk delivers parcels from the Ukraine to the UK once or twice a month and that “otherwise, he works as a builder as self-employed on a part time basis in the UK”. This contradicts the evidence of Mr Ivanchuk and Mr Shafransky (which we accept) that Mr Ivanchuk was a driver working for Mr Shafransky, that he came to the UK, perhaps once a month to collect humanitarian aid (not deliver parcels) and that he occasionally worked on building sites in the UK during his annual leave.[54]Sterling Law’s submissions concerned the alcohol and referred to the Border Force policy which applies where a vehicle has been seized as the vehicle in which alcohol (or other goods) have been smuggled. That was not the case here and the submissions were irrelevant. The seizure was not under section 141 CEMA, but under section 88 CEMA, on the grounds that there was a concealment. No information was provided nor submissions made about the compartment in the sleeping bunk.[55]There was no reference to hardship, exceptional or otherwise. The only relevant comment was “The vehicle seizure has proven to be financially and mentally detrimental to Mr Ivanchuk and his family”.[56]The letter also referred to Mr Ivanchuk’s work collecting humanitarian aid and referred to the “CMR letters” as “evidence of his voluntary involvement in delivering the supplies”. Whatever else the notes were, they were not connected to his aid work.[57]Border Force issued its decision letter on 2 August 2022. It, correctly, referred to section 88 CEMA and stated the general policy was to refuse restoration in these circumstances. It added that in all cases, any other relevant circumstances would be taken into account in deciding whether restoration is appropriate. The letter then said that there were no exceptional circumstances which would justify a departure from the policy as “the vehicle contained a sophisticated concealment for the purposes of smuggling”. Section 88 refers to an adaptation for “the purpose of concealing goods” rather than smuggling. There is no suggestion that the concealment was being used for smuggling when the van was seized. It is accepted that the space was empty, although its mere existence was the basis for the seizure.[58]Sterling Law requested a review in their letter of 10 September 2022. This letter incorrectly stated that Mr Ivanchuk worked as a courier transporting parcels, various goods and passengers between the Ukraine and the UK. The main ground for requesting a review was that the zipped compartment was not a “concealment” and Border Force did not take account of the certification by the Ukrainian authorities or the possibility there might be an innocent explanation for it. This goes to the legality of the seizure and cannot be argued owing to the deeming provisions in schedule 3 CEMA.[59]There was, again, no reference to hardship, other than that “the seizure has proven to be financially and mentally detrimental to his family”.[60]Sterling Law alleged that the decision did not take account of all relevant considerations which were referred to in their previous letters which would “properly reflect exceptional circumstances”. This was presumably a reference to Mr Ivanchuk’s humanitarian work gathering aid. However, the letter went on to say: “He was forced to use/rent out another vehicle to deliver food, medical and armour supplies from the United Kingdom to Ukraine due to the humanitarian crisis in Ukraine”.[61]This is also incorrect. We have found that the humanitarian work was carried out on the instruction of Mr Ivanchuk’s employer, Mr Shafransky and that Mr Shafransky provided the vehicles for this purpose. The van was Mr Ivanchuk’s private vehicle and was not used for his work, charitable or otherwise.[62]The final ground was that the decision to seize was not reasonable or proportionate.[63]Mr Summers’ review decision was issued on 19 October 2022 and, unsurprisingly, given the information provided by Sterling Law, he upheld the decision that the van should not be restored.[64]Mr Summers set out the Border Force Policy for the restoration of commercial vehicles that have been used for smuggling excise goods. “Commercial vehicles” include not only Heavy Goods Vehicles but any vehicle considered to be moving primarily for a commercial and business purpose. He went on to say that each case is considered carefully on its individual merits so as to decide whether exceptions should be made and any evidence of hardship is always considered. A vehicle adapted for the purpose of concealing goods will not normally be restored.[65]In his consideration, he stated that the policy should be applied firmly but not rigidly so as to allow an exercise of discretion on a case-by-case basis.[66]Mr Summers considered the circumstances surrounding the seizure (but not the legality of the seizure) and the representations and other material available to Border Force. In essence, this was the correspondence with Sterling Law and the seizing Officers’ notebooks, as set out in his witness statement.[67]Although a vehicle adapted for the purposes of concealing goods will not normally be restored, in exceptional circumstances the vehicle may be restored for a fee to include the cost of removing the adaptation. (Mr Summers’ emphasis).[68]In the present case, Mr Summers found no sufficient or compelling reasons to offer restoration and upheld the original decision.[69]He invited Sterling Law to submit any fresh information and set out the appeal rights. Sterling Law provided no further information and did not appeal the review decision.[70]Ms Donaldson’s letter of 11 January 2023 attached to her email to Border Force of 12 January 2023 (which we discuss further below) indicated that Mr Ivanchuk had repeatedly chased Sterling Law but had been unanswered or fobbed off. In June 2022 he requested the documents submitted by Sterling Law to Border Force and any correspondence but received no reply. As noted, Mr Ivanchuk was employed on his humanitarian duties between 17 October 2022 and 23 December 2022, when he returned to Ukraine. He only found out about the review decision and Sterling Law’s failure to submit the Notice of Claim, on his return.

Events following the review by Border Force

[71]Mr Ivanchuk then instructed Ms Davidson and she took several actions on his behalf:(1) She made a complaint to Border Force about the behaviour of the officers at the time of seizure. In particular, she complained about the officer’s disrespectful treatment of Mr Ivanchuk, the fact they denied him the assistance of an interpreter or any help with interpretation from another traveller and they misled him into signing documents which did not understand, and which were in a language he did not understand. Border Force declined to consider the complaint as it was considerably outside the three-month time limit for making complaints.(2) She requested Mr Ivanchuk’s file from Sterling Law and received some documents which appeared to be correspondence between Sterling Law and Border Force. She subsequently submitted a Subject Access Request to obtain further information including contacts with Mr Ivanchuk and attendance note of meetings but received no response. She subsequently made a formal complaint against Sterling Law.(3) She wrote to Border Force and requested that they accept a new Notice of Claim dated 23 December 2022. The Notice of Claim is the form required to challenge the seizure in the Magistrates’ Court. Border Force refused to accept the new notice and explained that there is a strict one-month time limit from the date of seizure. If there is no challenge within this period, the seized item is deemed duly forfeited and the legality of the seizure can no longer be challenged.(4) In her 11 January 2023 letter, sent by email on 12 January 2023 (the January letter), she submitted a request for an additional review and provided new evidence and supporting documents. Mr Summers’ response stated that it was not possible to challenge the seizure at this stage. He did not comment on the request for an additional review, but there is no right to a second review, and the appeal period expired 18 November 2022.[72]The appellant made a late appeal to this Tribunal on 1 February 2023. Permission to appeal out of time was granted in a separate application.[73]The January letter did include further information and relevant documents although it also contained many irrelevant submissions and documents which were effectively challenges to the seizure or related to Sterling Law’s negligence or the complaint against Border Force.[74]Although the complaint against Border Force is not relevant to the decision, aspects of it are “circumstances surrounding the seizure”, which are relevant, and in particular, the fact that Mr Ivanchuk was unable to communicate properly with Border Force and was unable to explain why he was in the freight lane or the purpose of his visit and felt compelled to sign documents he did not understand.[75]The alleged negligence of Sterling Law is not a matter for Border Force. However, the fact that they wrote to Border Force with incorrect and misleading information without instructions from their client is relevant as this correspondence was a major element in the original Border Force decision and Mr Summers’ review. In the January letter, Ms Davidson sought to correct the information. She stated that the “goods” were not of a commercial nature and, for the first time, stated that the visit was a private trip during Mr Ivanchuk’s annual leave and that no money was taken for transporting his friends’ goods to the UK for their relatives and friends. She also explained the nature of the “consignment notes” and corrected the information about the frequency and purpose of trips to the UK.[76]She provided evidence of the nature of Mr Ivanchuk’s work and information about his employment. A certificate from Mr Shafransky confirmed Mr Ivanchuk’s employment by the company, his salary, the fact that at the time in question he was on annual leave and the long term business trip collecting humanitarian aid for Ukraine from countries in the EU.[77]Sterling Law had not raised the issue of hardship other than a vague reference to “financial detriment”. Ms Donaldson explained that Mr Ivanchuk had purchased the van using money borrowed under a loan agreement made on 16 September 2019 (the Loan) and secured by a vehicle pledge agreement dated 17 September 2019 (the Pledge). Copies of the Loan and Pledge, and English translations, were included with the January letter. She contends that, as a result of the seizure and Mr Ivanchuk’s inability to repay the loan, his house is at risk and he and his family could become homeless.

The Loan and Pledge

[78]The relevant provisions of the Loan are set out below.[79]The lender is an individual. The loan amount was $30,000 and is to be repaid in dollars. The purpose of the Loan was to enable Mr Ivanchuk to buy the van.[80]Interest was charged at 1.5% a month, payable monthly until the Loan is repaid.[81]The period for repayment of the Loan is from 1 April 2020 to 1 April 2025. The Loan is to be repaid in a lump sum or by instalments of not less than $500.[82]We note that the loan period has expired. Clause 3.1 of the Loan provides that the period may be extended by agreement of the Parties “which is executed by an additional agreement of the Parties to this agreement”.[83]The amount of the Loan currently outstanding is $19,500. We infer than Mr Ivanchuk’s mother is no longer able to help him financially. Mr Ivanchuk gave evidence that he is unable to repay the Loan. Given the ending of Mr Ivanchuk’s employment, his previous salary, the disruption in Ukraine owing to the war and the significant payments required under the Loan, we accept this. Mr Ivanchuk asked the lender verbally to wait to enforce the Loan until the Tribunal Hearing was complete. If the van was restored or if he received compensation, he would be able to repay the rest of the Loan. There is no written agreement or other statement from the lender that he will wait for payment or about how long he will wait. As noted, an extension of time must be by way of additional agreement. Clause 7.3 of the Loan provides that any amendment to the terms must be in writing. There has been no written extension agreement and the lender’s current forbearance is an informal arrangement. The lender could enforce the Loan at any time. Clause 4 of the Loan provides for a penalty if repayment is late.[84]Clause 4 of the Loan provides that the Loan is to be secured by a pledge agreement in relation to the van and Mr Ivanchuk duly gave this security by pledging the van to the lender under the Pledge.[85]Clause 2.4 of the Pledge provides that the “Mortgagee” can enforce the debt against the van if the Loan is not repaid in accordance with the Loan agreement.[86]Under Clause 2.5, the Pledger (Mr Ivanchuk) is forbidden from using the van for commercial purposes.[87]Under clause 2.11 of the Pledge: “2.11. In case of non-fulfilment or improper fulfilment by the Pledger of obligations under the loan agreement, the Mortgagee, the Pledger has the right to foreclose on the subject of collateral. Foreclosure on the subject of collateral is carried out by the Mortgagee on the basis of a court decision, on the basis of the notary's writ of execution, or out of court in accordance with Art. 24, 26, 27 of the Law of Ukraine "On Securing Creditors' Claims and Registration of Encumbrances". The Mortgagee determines the method of foreclosure on the subject of collateral independently in the manner and under the conditions determined by the current legislation of Ukraine. If the amounts received from the sale of the pledged property are not enough to fully satisfy the requirements of the Mortgagee, he is entitled to receive an amount that is not enough to fully repay the debt at the expense of applying foreclosure on other property of the Pledger in the manner prescribed by applicable law.” (sic)[88]Although this translation is perhaps not entirely accurate, it is clear that if the Loan is not repaid in full, and if insufficient funds are received from the pledged property i.e. the van, the lender is entitled to take action to foreclose on other property of the Pledger.[89]We accept Mr Ivanchuk’s witness evidence that his only substantial asset (apart from the van) is his family home. Accordingly, if the van is not restored or if he receives no compensation, Mr Ivanchuk and his family are at risk of losing their home should the Mortgagee apply for foreclosure on it.[90]It is not now possible to restore the van as it was sold by Border Force at auction on 31 January 2023, astonishingly with the “adaptation for concealment” still in place. Mr Summers was unaware of the sale as he avoids knowing the fate of the seized goods when he is considering matters in case it should influence his decision. He was therefore unable to comment on the fact that the van was sold with the compartment intact.

The strike out application

[91]The appellant’s Notice of Appeal set out twelve grounds of appeal as follows (as in the original).(1) “The Review Officer used the Border Force policy on the restoration of seized commercial vehicles instead of the policy for private vehicles as the vehicle could not be used for commercial purposes under the Vehicle Pledge Agreement and the Loan Agreement.(2) The Review Officer did not take into consideration that no interview of both travellers was conducted to specify the reason for the goods in the vehicle.(3) The Review Officer did not consider that the goods were just parcels of the Appellant's friends to their relatives in the UK and were brought to the UK for private use but not for commercial purposes.(4) The Review Officer did not take into account that the Appellant and his friend travelled together during their holiday to London, not for any commercial purposes.(5) The Review Officer wrongly refused to reconsider his review decision even though the Appellant submitted evidence that the Appellant's previous representative acted not in accordance with the Appellant's instructions and provided wrong information.(6) The Review Officer wrongly refused to reconsider his review decision arguing that the Appellant does not accept that the vehicle was seized legally.(7) The Review Officer wrongly refused to reconsider his review decision referring to the Notice of Claim that wasn't submitted in time arguing that this restricts him from any further actions or reviews.(8) The Review Officer did not consider that there were two travellers and there was no excess alcohol in the vehicle for this reason.(9) The Review Officer did not consider a Certificate of the General Service Centre of the Ministry of internal affairs of Ukraine provided to him by the Appellant as new evidence.(10) The Review Officer did not consider that the Appellant has a deep hardship due to this seizure as his home is jeopardised to be taken as the Appellant lost the pledge (the seized vehicle). He has to pay the debt for the vehicle until 01/04/2025. The Appellant is the vehicle owner. He purchased the vehicle by using the borrowed money under the Loan Agreement dated 16/09/2019 (enclosed). He will pay his loan until 01/04/2025. Under the Lender’s request, in order to secure the terms of the contract, the Appellant also entered a vehicle pledge agreement on 17/09/2019 …The circumstances that have been unlawfully created by BF Officers (in accordance with the Appellant's complaint to the Home Office) that can be confirmed by three witnesses placed the Appellant in the position when even his home is at risk now as the pledge was seized by BF. The Lender agreed to wait until the final solution is received in this case. Still, the residential home of the Appellant and his family is under jeopardise to be taken instead of the seized vehicle if he will not pay his debt. Sterling Law solicitors even did not ask the Appellant about his circumstances in connection with the purchase of the vehicle.(11) This is unfair to realize that when the whole World assists Ukrainians in resisting the war, the UK takes from a poor Ukrainian (who cannot even speak English) everything that he has.(12) The Appellant refers to the recent case 'The Director of Border Revenue v Keith Dockett' (Appeal number:UT/2019/0052; [2020] UKUT 141 (TCC).” (sic)[92]Border Force sought to strike out all the grounds on the footing that the Tribunal has no jurisdiction to consider them and/or, the appellant has no reasonable prospect of success.[93]We heard submissions on the Strike Out Application from Mr Ridding and Miss Kolentsova at the start of the hearing.[94]We agreed with Mr Ridding on most of the grounds:(1) Grounds 2 and 3 are irrelevant as they relate to the alcohol which is not the subject of this application and in any event, those grounds go to the legality of the seizure of the alcohol.(2) Grounds 5 and 7 relate to the alleged negligence of the former advisors, which is not a matter for this Tribunal.(3) Grounds 6 and 9 go to the legality of the seizure of the van which is outside the jurisdiction of the Tribunal.(4) Ground 8 goes to the legality of the separate seizure of the alcohol which is not relevant to this application and outside the Tribunal’s jurisdiction.(5) Ground 12 is simply a case the appellant wished to refer to and is not a ground of appeal.[95]That leaves Grounds 1, 4, 10, and 11.[96]Ground 1 relates to the choice of policy and the alleged mis-application of the policy. Border Force applied the commercial policy and Miss Kolentsova argues they should have applied the personal vehicle policy as this was a personal visit and not a commercial enterprise. Mr Ridding submitted that the policy was irrelevant insofar as Border Force is entitled to apply that policy to a vehicle which has been adapted for the purpose of smuggling.[97]We considered that the choice of policy and its application are matters relevant to the review decision and so are within our jurisdiction. On the basis of the documents we had seen the arguments were not obviously hopeless and we decided not to strike out Ground 1. or Ground 4. which makes a similar point.[98]Grounds 10 and 11 relate to hardship and proportionality, which can constitute reasons for restoring seized goods. Mr Ridding conceded that hardship was a consideration, but contended that the issue of hardship was first raised in the January letter. He also submitted that there was no evidence of hardship, only assertions and the case law established that it was necessary to demonstrate exceptional hardship which had not been done. There was therefore no reasonable prospect of this ground succeeding.[99]Miss Kolentsova submitted that evidence of hardship had been submitted in January 2023 and in particular, the Loan and the Pledge which showed that Mr Ivanchuk was exposed to the possibility of losing his home and to be homeless in wartime was an exceptional hardship.[100]We consider that hardship is an element of proportionality and this is a matter which is relevant to the review decision and within our jurisdiction.[101]We recognise that there was no evidence of hardship before Mr Summers when he made his decision. However, the Court of Appeal in Gora and others v Commissioners of Customs and Excise [2003] EWCA Civ 525 (Gora) held that this Tribunal is a fact-finding Tribunal and we are entitled to find the primary facts relevant to Border Force’s decision. It is accepted that this includes facts which were not known to the decision maker at the time. At [38. 3. d.] the Court in Gora stated: “…the Tribunal’s role would be as the Tribunal held in Gora: ‘[The Tribunal] satisfies itself that the primary facts upon which the Commissioners have based their decision are correct. The rules of the tribunal and procedures are designed to enable it to make a comprehensive fact-finding exercise in all appeals.’”.[102]The issue of hardship is clearly relevant, and the appellant’s case is not obviously hopeless. We therefore decided not to strike out grounds 10 and 11.[103]We proceeded to hear the substantive case with the grounds of appeal being limited to the choice and application of Border Force’s policy and the issues of hardship and proportionality.

Did the review officer apply the correct policy?

[104]The original decision maker and Mr Summers applied the policy applicable to commercial vehicles. The review letter stated that ““Commercial vehicles” include not only ‘heavy goods vehicles’ but any vehicle considered to be moving primarily for commercial and business purposes.”[105]Mr Summer had no doubt that the van was a “commercial vehicle” for several reasons:(1) The vehicle was a van, and it was towing a trailer.(2) The vehicle drove into the freight lane.(3) The reason for the trip given to the officers at Dover was “post” which indicated a commercial activity. They were also told it was a regular trip.(4) The information provided by Sterling Law confirmed the commercial nature of the visit. Mr Ivanchuk was described as a “courier” and the “owner and operator” of the van. They said Mr Ivanchuk made frequent trips to the UK bringing parcels and passengers and on this occasion had brought “goods” referred to in “CMR delivery notes”.[106]Mr Ridding also pointed out that Mr Ivanchuk had replied “yes” on being asked by the officer whether he had seen inside the post.[107]Further, in the “how many Kg” column of the “consignment notes” there was one entry which said “paid”. Mr Ridding took this as evidence that Mr Ivanchuk was being paid for a service which supported the contention that this was a commercial enterprise.[108]Mr Ridding concluded that it was reasonable for Mr Summers to apply the commercial policy.[109]We agree that it was reasonable for Mr Summers to apply the commercial policy based on what he knew at the time, but we must consider whether, taking account of all the evidence before us, this was the correct policy.[110]Dealing with the specific points at [105] to [107] above:(1) Whether a van is a commercial vehicle is not determined by the fact it is a van, but whether the vehicle “is considered to be moving primarily for commercial and business purposes.” We return to this below.(2) Mr Ivanchuk did not understand the significance of using the freight lane. When he left the ferry he saw a sign with a picture of a lorry on it but did not know that this was only for commercial vehicles. Mr Ridding indicated that one would pay extra to use the freight lane. We accept Mr Ivanchuk’s evidence that he bought a normal ferry ticket and did not pay to use the freight lane.(3) We approach the statements in the Border Force notebooks with caution. Leaving aside the allegations of improper conduct which could not be investigated because of the lapse of time, we accept the uncontested evidence of the three witnesses about the language barrier and the fact that Border Force neither provided any language assistance nor allowed anyone to help Mr Ivanchuk understand what was going on. For example, “post” would not be an appropriate way of describing the contents of the van/trailer, even if it were a commercial enterprise.(4) We have found that Sterling Law provided information to Border Force without taking Mr Ivanchuk’s instructions and that it was incorrect and misleading.(5) Mr Ivanchuk said these items were gifts and were not for resale and that he was not paid for delivering the gifts. This was corroborated by Mr Kozak. We do not attach much weight to the reference to “paid” in a single place in the notes which had thirty or more entries. It is not clear what the figures in the “how many Kg” column referred to, but it was not weight. We also note that the figures varied considerably, between 15 and 171. The destinations were all places around London, and one would expect the amounts to be similar if they were, indeed, the price for delivery. Further, some entries had more than one number and many entries had no number. We conclude, on the balance of probabilities, that Mr Ivanchuk was not paid for delivering the gifts.[111]The evidence of Mr Ivanchuk, Mr Shafransky, Mr Kozak and Mr Huzar was consistent on the purpose of the visit. All three employees had taken annual leave to come to the UK to earn extra money from construction work. As it was near Christmas, they brought gifts of food and drink received from friends in the Ukraine, to deliver to their friends and relations in the UK. Mr Ivanchuk was not paid for this.[112]The van was Mr Ivanchuk’s private vehicle which he referred to as his “car” and which he used as transport for his family. He did not use the van in the course of his employment, including his humanitarian work; for this he used vehicles provided by his employer.[113]Ms Donaldson made much of the fact that the Loan agreement prohibited the van being used for commercial purposes. We do not place much weight on this on its own as a person may not comply with the terms of a contract. It is, however, consistent with the witness evidence as to the use of the van. We also note that clause 3.2.2 of the Pledge, expressly provides that the Mortgagee can enforce the debt before the due date for repayment if the Pledger violates the terms of the Pledge and, in particular, if he uses the vehicle for commercial purposes. This would be a powerful incentive not to use the van for commercial purposes.[114]Having considered the submissions and the evidence discussed above, we find that the purpose of the Mr Ivanchuk’s trip to the UK when the van was seized was a private visit to seek work. As the van was not moving “primarily for commercial and business purposes” it was not a “commercial vehicle” for the purpose of applying the Border Force restoration policy.[115]It follows that Border Force should have applied the policy for private vehicles.[116]Border Force do not publish their policies on restoration, but some aspects have come into the public domain through decided cases.[117]Mr Summers was cross-examined on the difference between the policies.[118]In the review letter he had said:
“A vehicle adapted for the purposes of concealing goods will not normally be restored, but in exceptional circumstances the vehicle may be restored for a fee to include the cost of removing the adaption.” (Emphasis in original)
[119]Miss Kolentsova took us to a number of cases in which the policy was explained. For example, in Urim Gjana v Director of Border Revenue [2016] UKFTT 105 (TC), the Tribunal said at [32] to [35] “32. The review decision summarised the restoration policy as follows:
“The general policy is normally to refuse to restore vehicles that have been seized under section 88 unless we are satisfied the owner has no knowledge of the adaptation, in which case the vehicle may be restored on certain conditions, one of would be the removal of the adaptation. In all cases other relevant circumstances will be taken into account in deciding whether restoration is appropriate or not” 33. Mrs Perkins confirmed at the hearing that this was her understanding of the policy, but was unable to identify what “conditions” might be imposed in circumstances where the owner was unaware apart from removing the adaptation. In practice that was the one condition imposed, and the work would be carried out by a Border Force contractor once the person seeking restoration had agreed to bear the cost. 34. Mrs Perkins also indicated that, if the Border Force concluded that the appellant was aware of the adaptation, restoration would normally only occur in circumstances of exceptional hardship. 35. Our understanding of the general policy is therefore that a vehicle will be restored if the Border Force is satisfied that the owner was unaware of the adaptation, subject to covering the cost of removing it. Otherwise the general policy is only to restore in cases of exceptional hardship. We do not see any basis to question the reasonableness of this in principle, and the appellant’s Counsel did not seek to do so.” “The general policy is normally to refuse to restore vehicles that have been seized under section 88 unless we are satisfied the owner has no knowledge of the adaptation, in which case the vehicle may be restored on certain conditions, one of would be the removal of the adaptation. In all cases other relevant circumstances will be taken into account in deciding whether restoration is appropriate or not”
[120]Similarly, the Tribunal in SC Nicktrans SRL v The Director of Border Revenue [2015] UKFTT 0177 (TC) set out the policy at [22]:
“Vehicles Constructed or Adapted for Concealing Goods The general policy is that a vehicle constructed, adapted, altered or fitted for the purpose of concealing goods will be seized and not restored. Such a vehicle is liable to forfeiture under section 88 of CEMA and may be seized under section 139 of the same Act, whether or not any goods are found in the vehicle. This applies to all types of vehicle, whether private or commercial, and irrespective of who owns them. If, exceptionally, the vehicle is to be restored, the restoration amount, calculated in accordance with the usual policy for the type of vehicle and circumstances, should be increased by the cost of removing the place where goods could be concealed and the work must be carried out prior to releasing the vehicle. No vehicle constructed, adapted, altered or fitted for the purpose of concealing goods may be restored or otherwise disposed of unless the place for concealing goods is removed.”
[121]The Tribunal went on to say, at [23]: 23. … She [the Border Force review officer] referred to the UKBF’s policy with regard to the restoration of commercial vehicles and said:
“The policy for the restoration of commercial vehicles that have been used for smuggling excise goods is intended to tackle cross border smuggling and to disrupt the supply of excise goods to the illicit market. “Commercial vehicles” include not only ‘Heavy Goods Vehicles’ but any vehicle considered to be moving primarily for a commercial and business purpose. Each case is considered carefully on its individual merits so as to decide whether exceptions should be made. Any evidence of hardship is always considered. A vehicle adapted for the purposes of smuggling will not normally be restored, but in exceptional circumstances the vehicle may be restored for a fee to include the cost of removing the adaptation.”
[122]This corresponds with the evidence given by Mr Summers. In essence, where a vehicle is forfeited because it contains an adaption for concealing goods, the only circumstances in practice in which the vehicle may be restored are:(1) Where the owner did not know about the concealment, although the concealment must be removed before restoration.(2) Where there is exceptional hardship.[123]Mr Summers explained that there is a considerable difference between the situation where a vehicle is seized under section 141 CEMA (where it has been used to smuggle excise goods) and the situation where it has been seized under section 88 CEMA (where there has been an adaptation to conceal goods). In the former case, Border Force will take account of such factors as the amount by which the excise goods exceeded the permitted amount, the values involved, consideration whether the seizure of the vehicle is proportionate in the light of the value/amount of the goods smuggled and whether it was a “first offence”.[124]None of this is relevant in the case of a section 88 seizure.[125]Mr Ivanchuk was aware of the adaption. That he thought (and had evidence from the Ukrainian authorities) that it was legitimate and not concealed is not relevant to the present proceedings, as that goes to the legality of the seizure.[126]Mr Summers also stated that in adaption cases it was not relevant that the owner had a clean record, nor did he need to consider the value of the vehicle or the proportionality of the value in relation to the excise goods. The size and capacity of the adaption was not relevant, nor the fact that there had been nothing in the compartment. The mere existence of the compartment was sufficient.[127]In Summary, Mr Summers’ evidence was that in adaption cases, the Border Force policy was essentially the same in both private and commercial situations, as is also indicated in the extract from SC Nicktrans SRL at [120] above.[128]Miss Kolentsova took us to a number of cases on the issue of proportionality, but these were largely cases where a vehicle had been seized because it was carrying excess excise goods. As set out above, this is not a consideration in concealment cases. She also referred us to several concealment cases where factors such as the fact the concealment was empty was regarded as important. However, these cases related to situations where the owner was not aware of the adaption, which is not the case here. The cited cases dealt with different contexts and we did not find that they assisted us.[129]The only factor which might affect the restoration decision is if Mr Ivanchuk can show that the decision not to restore causes exceptional hardship.[130]Mr Ridding submits that there was no information about hardship at the time of the decision and that there has been no evidence of hardship. Hardship must be exceptional and this is a high bar.[131]The seizure of the vehicle is not itself hardship but a consequence of the circumstances which have led to the seizure.[132]The review letter indicated that Mr Summer would be prepared to consider fresh information. Mr Summer did not consider that Ms Donaldson’s January letter to contain any fresh information, despite the fact that it addressed the incorrect information provided by Sterling Law and raised the issue of hardship for the first time. We acknowledge that much of the information was not relevant to the decision, for example because it related to the legality of the seizure or the alleged negligence of Sterling Law but, importantly, it enclosed copies of the Loan agreement and Pledge and stated: “The circumstances that have been unlawfully created by BF officers (in accordance with our complaint) that will be confirmed by 3 witnesses placed Taras in the position when even his home is under risk now as the pledge [the van] was seized by you. The Lender agreed to wait until the final solution will received in this case, but the residential home of Taras and his family is under jeopardise to be taken instead the seized vehicle if he will not pay his debt.” (sic)[133]This was not raised by Sterling Law.[134]We consider that this constituted fresh information which had not been considered before. In accordance with Gora, we are entitled to find the primary facts, as they existed at the time of the review decision and consider whether, in the light of those facts the decision was reasonable in the Wednesbury sense.[135]Clearly, the financial consequences of a decision to refuse restoration is a relevant matter which should be considered. As indicated in the case law, Border force accept that exceptional hardship is a factor which may result in restoration, even in a concealment case. The potential loss of an individual’s home, especially in wartime, must be regarded as exceptional hardship. Mr Summers agreed this was the case provided there was some evidence of it.[136]He denied that the Loan and Pledge proved hardship. He did not accept that there was any other proof that Mr Ivanchuk could lose his home.[137]He indicated that the sort of evidence he would want to see included letters threatening foreclosure, bank statements showing the individual’s financial situation, demands from the lender or a foreclosure notice. The individual must prove they are really struggling financially. The mere fact of the existence of a loan is not of itself an exceptional hardship.[138]We have considered the terms of the Loan and Pledge, the witness statements and the oral evidence and we conclude that there is at least some evidence that, as a result of the seizure of the van, Mr Ivanchuk could lose his home.[139]The original Loan was $30,000. Some of it has been repaid as the amount outstanding at the time of the hearing was $19,500.[140]Under clauses 2.1and 3.4 of the Loan, interest is payable on the outstanding amount at 1.5%, which must be paid monthly. 1.5% of the original amount would be $450. This is far more than Mr Ivanchuk’s earnings. As noted, his mother had assisted him, but we infer that she ceased to be able to do so, as Mr Ivanchuk stated, and we accept, that he was no longer repaying the loan because he was not able to do so. This leaves $19,500 and accruing interest outstanding.[141]The capital of the Loan was to be repaid by 1 April 2025. This has not happened.[142]The lender has informally agreed not to enforce the Loan until the case is finished although he is not legally bound to refrain from enforcement. In any event, Mr Ivanchuk states that if he does not ultimately repay, the lender will take his house. He stated, and we accept, that this is his only substantial asset now that he no longer has the van and he would only be able to repay the loan if he receives compensation for the seizure (as it is now impossible for the van itself to be restored).[143]We have set out the relevant terms of the Loan and Pledge above. Clauses 2.8 and 2.11 provide that if Mr Ivanchuk is in breach of the provisions of the Loan or fails to repay the loan the Mortgagee can enforce the Loan against the collateral, i.e. the van, failing which he is entitled to foreclose on Mr Ivanchuk’s other property, i.e. his home.[144]Mr Ivanchuk has defaulted on the Loan and the lender is entitled to enforce these provisions.[145]In considering the reasonableness of the decision to refuse restoration, we must look at the situation at the time of the decision. In the January letter, which was written soon after the review decision, Ms Donaldson indicated that Mr Ivanchuk’s home was already at risk and we infer that Mr Ivanchuk was at this point unable to repay the loan.[146]Even if the lender was not, at that point entitled to take enforcement action, we consider that there was sufficient evidence, at the time of the review decision, that Mr Ivanchuk would not be able to repay the Loan when it became due on 1 April 2025 unless the van was restored or he received compensation. If there was no restoration/compensation, the lender could, enforce the legally binding Loan and Pledge agreement against Mr Ivanchuk’s family home.[147]In our view the real likelihood that a person may lose their home in the foreseeable future as a result of a non-restoration decision is a relevant consideration in making that decision.[148]Mr Summers did not take account of the Loan and Pledge, Mr Ivanchuk’s financial circumstances and the likely impact of a failure to restore/pay compensation when he made his review decision. We do not criticise Mr Summers for this; he was not provided with this information.[149]However, we have found that these relevant facts existed at the time of that decision and were not taken into account. This means that the review decision was flawed in the Wednesbury sense because Mr Summers had failed to take account of a relevant consideration, namely Mr Ivanchuk’s actual and/or likely future exceptional hardship.[150]Exceptional hardship is one of the few circumstances in which a vehicle may be restored in cases of adaptions for concealment and we consider that it is not inevitable that that the decision would have been the same had the facts which we have found been taken into account.[151]For the reasons set out above, we make the following Directions.

Directions

[152]The decision made by Mr Summers on 19 October 2022 to refuse restoration of the van shall cease to have effect from the date of this Decision.[153]Border Force must conduct a further review of the original decision taking into account the facts we have found and any other relevant factors.[154]To the extent it makes any difference, they shall apply the policy for private vehicles rather than the commercial policy.[155]They shall, in particular, consider the financial consequences for Mr Ivanchuk of a failure to restore/pay compensation and shall conduct the review in accordance with our finding of fact that Mr Ivanchuk is likely to suffer exceptional hardship if he does not receive compensation for the van.[156]To the extent consistent with this decision, the review should be carried out in accordance with section 15F Finance Act 1994 as if the “relevant date” were the date of this decision. Section 15F(4) permits the Appellant to provide further representations and evidence.[157]We would note that, should Border Force uphold its original decision not to restore the van, Mr Ivanchuk would be able to make a separate appeal to the Tribunal in relation to that decision if he considers it appropriate to do so.

Right to apply for permission to appeal

[158]This document contains full findings of fact and reasons for the decision. Any party dissatisfied with this decision has a right to apply for permission to appeal against it pursuant to Rule 39 of the Tribunal Procedure (First-tier Tribunal) (Tax Chamber) Rules 2009. The application must be received by this Tribunal not later than 56 days after this decision is sent to that party. The parties are referred to “Guidance to accompany a Decision from the First-tier Tribunal (Tax Chamber)” which accompanies and forms part of this decision notice. Release date: 22nd JANUARY 2026