Zobortrans EU s.r.o. v The Director of Border Revenue (on behalf of Border Force)

Permission to appeal from the First-tier Tribunal is granted only where the proposed appeal has a realistic prospect of success on a point of law, or there is another compelling reason. An appeal concerning an ancillary customs decision is assessed by the judicial-review standard of reasonableness. A flawed decision may nevertheless stand where a properly directed decision would inevitably have reached the same result. Requirements under the CMR do not exhaust the basic reasonable checks which Border Force may reasonably expect carriers to undertake to prevent smuggling. A tribunal need not provide an exhaustive checklist of such measures if its reasons make clear why the measures taken were insufficient. Fresh evidence will generally be refused where it could reasonably have been given below, is potentially disputed, and would not realistically establish an error of law.

The Applicant appealed to the First-tier Tribunal against Border Force decisions to restore seized vehicles on payment of fees following their use to transport smuggled tobacco and cigarettes. The First-tier Tribunal dismissed the appeals concerning the third and fourth seizures, finding that the Applicant had failed to take basic reasonable steps to prevent smuggling.

The First-tier Tribunal refused to set aside its decision and refused permission to appeal. The Upper Tribunal had refused permission on the papers, but reconsidered the application after an oral hearing. The issues were whether the First-tier Tribunal had erred in applying article 8 of the CMR, given inadequate reasons, made an irrational factual finding concerning the Applicant’s director’s absence, or should have admitted fresh evidence.

1. Application refused. Permission to appeal was refused on every ground because none disclosed an arguable material error of law and none had a realistic prospect of success. No other compelling reason justified permission.
2. An appeal to the Upper Tribunal lies only on a point of law under section 11 of the Tribunals, Courts and Enforcement Act 2007. The realistic-prospect test was applied. The First-tier Tribunal had correctly treated its task as deciding whether Border Force’s review decisions were unreasonable.
3. The First-tier Tribunal was entitled to find that the Applicant had not taken basic reasonable steps to prevent smuggling. Those steps included dismissing drivers involved in smuggling, making that consequence explicit in employment contracts, checking consignors’ and consignees’ bona fides, ensuring that CMR documents were legible, sealing trailers, checking loads, and recording reservations where required. The CMR did not define the full scope of reasonable anti-smuggling checks. Szymanski v DBR [2019] UKUT 0343 (TCC) was followed.
4. The CMR analysis was immaterial because the findings concerning the absence of employment safeguards and the continued employment of implicated drivers independently supported the outcome. In any event, the First-tier Tribunal gave rational and sufficient reasons. It was not required to produce an exhaustive list of reasonable measures.
5. The First-tier Tribunal was entitled to find that the director had never intended to attend the hearing. The finding was based on the chronology of the proposed attendance and the later childcare explanation. No relevant fact was ignored and no irrelevant fact was taken into account.
6. A decision-maker’s irrelevant consideration or failure to consider a material matter does not require an appeal to succeed where a properly considered decision would inevitably have reached the same conclusion. Fresh evidence was refused because it could reasonably have been given to the First-tier Tribunal, was potentially disputed, and was unlikely to reveal an error of law.

• Upper Tribunal (Tax and Chancery Chamber): permission to appeal from the First-tier Tribunal was refused following reconsideration at an oral hearing.
• First-tier Tribunal (Tax Chamber): appeals against the restoration decisions concerning the third and fourth seizures were dismissed. The Tribunal’s decision was released on 4 July 2024.
• First-tier Tribunal (Tax Chamber): on 9 January 2025, the application to set aside was refused and permission to appeal was refused.