KH, R (on the application of) v The Secretary of State for the Home Department

A non-refugee foreign national with leave to remain who applies for a certificate of travel must provide evidence that the relevant national authority has unreasonably refused a passport. It is rational to assess the application on the nationality claimed and to expect an application to that country’s authorities, unless an objectively supported reason justifies departure from the policy. A claimed risk on return does not itself establish a risk from attending an embassy in the United Kingdom. Refusal is compatible with Article 8 where there is no positive obligation to issue a document or, alternatively, where the refusal is necessary and proportionate.

KH had leave to remain in the United Kingdom as the parent of British children. Her asylum claim had been rejected in 2011, with the respondent and the First-tier Tribunal finding that she was Ethiopian rather than Eritrean and that she faced no relevant risk on return.

In 2023 she applied for a certificate of travel, identifying Eritrea as her nationality. She did not provide evidence that the Eritrean authorities had refused her a passport and did not respond to a request for that evidence. The Secretary of State refused the application under the published policy.

The Upper Tribunal refused permission to apply for judicial review, both on the papers and after an oral hearing. The Court of Appeal considered whether the decision was irrational, whether the Secretary of State had unlawfully failed to exercise discretion, and whether refusal breached Article 8 of the Convention.

Appeal dismissed. Lewis LJ gave the judgment, with which Snowden LJ and Dingemans LJ agreed.

1. Application of the policy. A person with leave to remain who is neither a refugee nor entitled to humanitarian protection must provide evidence that they applied to their country’s national authorities for a passport and that the application was unreasonably refused. KH applied on the basis that she was Eritrean. It was therefore rational to assess the application on that basis and to expect her to approach the Eritrean embassy.
2. Failure to establish a reason for departure. KH did not respond to the specific request for documentary evidence and supplied no witness evidence explaining why she had not approached the Eritrean authorities. The assertion that she might face persecution on return to Eritrea did not establish a risk merely from attending the Eritrean embassy in London. Nor was the Secretary of State required to assess an application on the alternative basis that KH might be Ethiopian when no application had been made on that basis. Grounds 1 to 3 were not made out.
3. Convention provisions. The United Kingdom had not ratified Protocol No. 4, which was not a Convention right under section 6 of the Human Rights Act 1998. Iletmis v Turkey (App no. 29871/96) concerned the confiscation of a national’s passport and was materially different. LB v Lithuania (App no. 38121/20) concerned Article 2 of Protocol 4 and did not establish a general obligation to issue aliens with travel documents. Its factual balancing exercise was distinguishable because KH had not shown an objective reason why she could not approach her claimed national authorities.
4. Article 8. The court assumed, without deciding, that principles concerning travel documents might apply under Article 8. In the circumstances, refusal either involved no positive obligation to issue a document or resulted in the inability to travel from KH’s own failure to take the required steps. Alternatively, refusal was necessary and proportionate to the legitimate aims of national security and public order. KH could reapply after complying with the policy or providing a valid reason why she should not be required to apply for a passport.

The respondent’s decision was lawful and compatible with Article 8.

1. Court of Appeal (Civil Division) — In [2025] EWCA Civ 675, dismissed the appeal and held that the refusal of a certificate of travel was lawful and compatible with Article 8.
2. Upper Tribunal (Immigration and Asylum Chamber) — Refused permission to apply for judicial review on the papers and again after an oral hearing.
3. First-tier Tribunal — Dismissed KH’s appeal against refusal of asylum and humanitarian protection in a decision dated 24 November 2011.