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

The Court of Appeal dismissed the appellant's challenge to the Home Office refusal of a certificate of travel. The Home Office policy requires applicants who do not have refugee or stateless status, or humanitarian protection, to provide evidence that they have made a formal passport application to their national authorities and that it was unreasonably refused. The appellant applied as an Eritrean national but did not provide documentary evidence that the Eritrean authorities had been formally and unreasonably refused; she did not respond to a specific request for such evidence. The Upper Tribunal had refused permission for judicial review and the Court of Appeal found no unlawfulness: it was rational for the Secretary of State to assess the application on the basis it was made, to expect an application to the Eritrean embassy, and no improper fettering of discretion was shown. The court also rejected the Article 8 Convention challenge, concluding either no positive obligation arose to provide a travel document in these circumstances or the refusal was proportionate and justified.

This is an appeal from the Upper Tribunal's refusal of permission to apply for judicial review of the Secretary of State's decision refusing a certificate of travel. The appellant, a foreign national with leave to remain in the United Kingdom as the parent of British children, had previously claimed asylum in 2011 as an Eritrean national; the Home Office refused the asylum claim and concluded she was more likely an Ethiopian national, a view accepted by the First-tier Tribunal. The appellant was later granted limited leave to remain and, in May 2023, applied for a certificate of travel stating her nationality as Eritrean.

The Secretary of State's published policy requires persons in the appellant's position (not refugees, not stateless and without humanitarian protection) to provide evidence that they have applied to their country's authorities for a passport and that such application was formally and unreasonably refused. The Home Office asked the appellant to provide documentary evidence of a refusal by the Eritrean embassy; she and her advisers did not respond and the application was refused on 1 September 2023.

The appellant sought judicial review advancing grounds that the Secretary of State had acted irrationally by assessing the application on the basis of her self-declared Eritrean nationality rather than as an Ethiopian as found by earlier decision makers; that it was irrational to expect her to attend the Eritrean embassy given a claimed fear of persecution; that the Secretary of State failed properly to exercise discretion under the policy; and that the refusal breached Article 8 of the European Convention on Human Rights.

The Court considered: (i) whether it was irrational to assess the application as made and to require evidence of a formal application and refusal by Eritrean authorities; (ii) whether there was objective evidence that the appellant could not approach the Eritrean embassy; (iii) whether the policy had been unlawfully applied or discretion fettered; and (iv) whether refusal engaged and breached Article 8. The court concluded that the Secretary of State acted rationally in assessing the application as submitted, that no evidence showed the appellant could not approach the Eritrean embassy, and that the appellant had failed to respond to a specific request for documentary evidence. The court found no unlawful fettering of discretion. On Article 8 the court held either there was no positive obligation to provide a travel document in these circumstances or, alternatively, that the refusal was proportionate and justified; reliance was placed on relevant Strasbourg authority distinguishing cases where states had previously accepted inability to obtain national documents. The appeal was dismissed.

Appeal dismissed. The Court held that the Secretary of State lawfully applied the published certificate of travel policy: it was rational to assess the application on the basis it was made (as Eritrean), the appellant failed to provide requested documentary evidence that the Eritrean authorities had formally and unreasonably refused a passport, there was no sufficient evidence that approaching the Eritrean embassy was objectively impossible or unsafe, and there was no unlawful fettering of discretion. The refusal did not breach Article 8 of the Convention on the facts of this case.

Appeal from the Upper Tribunal (Immigration and Asylum Chamber) where permission to apply for judicial review was refused (JR-2023-LON-002523). The First-tier Tribunal dismissed the appellant's 2011 asylum appeal on 24 November 2011. The present appeal to the Court of Appeal ([2025] EWCA Civ 675) was heard following the Upper Tribunal refusal.