Judgment summary
This is a decision of the Upper Tribunal (Tax and Chancery Chamber) on an application by Keene Distribution Limited and Mohammed Naseemdost for permission to appeal a First-tier Tribunal (Tax Chamber) case management decision.
The FTT had refused to postpone the substantive hearing of the Applicants' appeals, listed for 19-28 October 2026, despite ongoing criminal investigations into Mr Naseemdost. The Applicants argued this engaged Article 6 of the European Convention on Human Rights and that the FTT had wrongly relied on Bittar & Others v FCA [2016] UKUT 265 (TCC).
The Upper Tribunal, following an oral reconsideration hearing on 16 October 2026, dismissed the application for permission to appeal, finding no arguable error of law in the FTT's Decision (paras 55-56).
Background
Mr Naseemdost is subject to two criminal investigations. Operation Eilat is an HMRC investigation concerning suspected trade-based money laundering between 6 April 2021 and 21 September 2022, involving several named companies (para 28). Operation Calcite is run by Greater Manchester Police and concerns alleged immigration, fraud and money laundering offences covering October 2022 to October 2024, when Mr Naseemdost was arrested (para 29).
The FTT proceedings concern Keene Distribution Limited's VAT return periods between November 2011 and May 2015 (para 30). The Applicants applied to the FTT to postpone the substantive hearing of their appeals, listed for 19-28 October 2026, on the basis of potential adverse findings in the FTT proceedings affecting potential criminal proceedings against Mr Naseemdost (paras 2, 30).
The FTT refused the postponement application in a Letter dated 29 September 2026 (the Decision) (paras 1-2, 30-31). The Applicants asked the FTT to reconsider on 7 October 2026, attaching a letter from Mr Naseemdost's criminal solicitors (para 3). The FTT refused permission to appeal the Decision on 8 October 2026 (the Refusal) (para 4). The Applicants then applied to the Upper Tribunal for permission to appeal on 11 October 2026 (the UT Application) (para 5), which was dismissed by decision notice dated 14 October 2026, released 15 October 2026 (para 7). The Applicants then sought reconsideration at an oral hearing under Rule 22(4) and (5) of the Upper Tribunal Rules, which took place by video on 16 October 2026 (paras 8-9).
Core dispute
The dispute concerned whether the FTT erred in law in refusing to postpone or stay the substantive FTT hearing pending the outcome of criminal investigations against Mr Naseemdost.
The Applicants argued, first, that continuing the FTT proceedings before any criminal proceedings concluded denied Mr Naseemdost his Article 6 Convention rights to a fair trial, particularly the enhanced rights under Article 6.3 in criminal matters (para 13(1)).
Second, the Applicants argued that the FTT had wrongly relied solely on Bittar & Others v FCA [2016] UKUT 265 (TCC) as authority for refusing to continue a stay, submitting that Bittar involved an unusual fact pattern and concerned filing of a Statement of Case and List of Documents rather than an actual hearing requiring Mr Naseemdost to give evidence, with potentially catastrophic consequences including bankruptcy in the civil proceedings and up to fourteen years' or life imprisonment in the criminal matters (para 13(2)).
During the oral hearing, the Applicants' representative, Mr Nawaz, also raised a new point concerning his own personal circumstances and their impact on his ability to represent the Applicants, suggesting the hearing be put back to Eastertime 2027 (para 14).
Court findings
The Upper Tribunal held that an appeal from the FTT lies only on a point of law under section 11 of the Tribunals, Courts and Enforcement Act 2007, and that permission should be granted only where there is a realistic prospect of success or some other compelling reason (paras 11-12).
The Tribunal found that the FTT correctly understood its decision as an exercise of judicial discretion in accordance with the overriding objective, and that it had properly taken Mr Naseemdost's Convention right to a fair trial into account, including addressing the risk of 'bad character' evidence (paras 35-37).
The Tribunal found no misdirection of law by the FTT, noting that Mr Nawaz did not seriously suggest the FTT misunderstood the correct principles or failed to consider relevant material (paras 38-39).
On the substantive balancing exercise, the Tribunal agreed with the FTT that there was no overlap between the criminal investigations and the VAT matters before the FTT, that the investigations had been ongoing for over five years without charges, and that HMRC's charging decision remained some way off even though a GMP charging decision might be imminent (paras 30-33, 40-42).
The Tribunal held that any risk of prejudice to Mr Naseemdost from adverse findings in the FTT proceedings being used in future criminal proceedings was speculative rather than real, that such risks (including 'bad character' evidence) could be managed by the Crown Court, and that the correct test was whether there was 'a real and not a notional risk of injustice', which had not been shown (paras 47-54).
The Tribunal concluded that the Decision was plainly within the bounds of the FTT's discretion and that it was hard to see how the FTT could have reached any other conclusion (para 55).
The Tribunal declined jurisdiction over the new point concerning Mr Nawaz's personal circumstances, holding this was in effect a fresh application for a different stay on new grounds, to be made separately to the FTT if pursued (paras 15-16).
Outcome
The Upper Tribunal refused permission to appeal on all grounds, finding no arguably material errors of law in the FTT's Decision and no realistic prospect of success, nor any other compelling reason to grant permission (paras 55-56).
Major issues / areas of contention
- Whether Article 6 of the European Convention on Human Rights required postponement of FTT tax proceedings pending parallel criminal investigations against an individual appellant.
- Whether the FTT misapplied or placed undue reliance on Bittar & Others v FCA [2016] UKUT 265 (TCC) in refusing to continue a stay of proceedings.
- Whether there was a real, rather than merely notional, risk of serious prejudice to Mr Naseemdost from adverse findings in the FTT proceedings being used in future criminal proceedings.
- Whether the FTT's case management decision refusing postponement fell within the generous ambit of discretion afforded to it.
- Whether the Upper Tribunal had jurisdiction to consider a new ground raised during the oral hearing concerning the representative's personal circumstances.