Rationality and Proportionality in Certificate of Travel Decisions: KH R (On the Application Of) v SSHD ([2025] EWCA Civ 675)

Introduction

KH, R (On the Application Of) v Secretary of State for the Home Department ([2025] EWCA Civ 675) is a decision of the England and Wales Court of Appeal delivered on 22 May 2025. The appellant, KH, is a foreign national granted leave to remain in the UK as the mother of British‐national children. She applied in May 2023 for a Home Office Certificate of Travel (“COT”), asserting Eritrean nationality and inability to obtain an Eritrean passport. The Home Office refused her application on the ground that she had not provided evidence of a formal passport application and refusal by the Eritrean authorities. Permission to judicially review that refusal was denied by the Upper Tribunal. KH appealed on four grounds, challenging the rationality of processing her claim as Eritrean rather than Ethiopian, the requirement to attend the Eritrean embassy, alleged fettering of discretion, and incompatibility with her rights under Article 8 of the European Convention on Human Rights.

Summary of the Judgment

The Court of Appeal, in a unanimous judgment, dismissed the appeal. It held that:

  • It was neither irrational nor unlawful to assess the application on the basis of the appellant’s self-declared Eritrean nationality and require her to apply to the Eritrean embassy for a passport, as mandated by the COT policy.
  • No evidence supported the proposition that approaching the Eritrean authorities in London would pose a real risk to the appellant.
  • The Home Office had invited documentary proof of an “unreasonable refusal” by the Eritrean authorities; the appellant and her advisers failed to respond.
  • Even if assessed as Ethiopian, the appellant did not follow policy by applying to the Ethiopian embassy or requesting the Home Office to do so.
  • The decision did not breach Article 8 ECHR because there is no positive obligation to grant a travel document, and in any event the refusal was proportionate and justified.

Analysis

1. Precedents Cited

The Court referred to two key Strasbourg authorities:

  • Iletmis v Turkey (App No. 29871/96): Concerned confiscation of a Turkish national’s passport by domestic authorities and its impact on family and private life under Article 8 and Article 2 Protocol 4. The Court observed that facts may engage both provisions.
  • LB v Lithuania (App No. 38121/20): Concerned refusal of an alien’s passport to a person with subsidiary protection under Article 2 Protocol 4. The European Court held that States have no general obligation to issue travel documents to aliens, but a refusal engages the right to free movement and must be justified by a proportionality assessment.

These cases guided the Court’s approach to the Article 8 argument and the scope of positive obligations to provide travel documents.

2. Legal Reasoning

The Court’s reasoning can be distilled into three pillars:

  1. Policy Rationality: The Home Office policy requires non-British nationals with leave to remain (other than refugees or stateless persons with humanitarian protection) to demonstrate they have applied for a national passport and been unreasonably refused before a COT can issue. Assessing the application on the declared nationality is inherently rational.
  2. Requirement to Apply to National Authorities: The policy’s object is to ensure genuine inability to secure a national passport before issuing a COT. The appellant was asked by e-mail to produce a refusal letter from the Eritrean embassy. Her silent failure to comply and absence of any factual basis for an objective risk in approaching that embassy made the refusal lawful.
  3. Article 8 ECHR Proportionality: Even assuming a Convention right to respect for private and family life via travel, the refusal was either not an “interference” attracting Article 8 or, if it were, it was justified (in accordance with law, pursuing legitimate aims, and proportionate). No positive obligation arose to grant a travel document absent compliance with the policy.

3. Impact

This decision clarifies and reinforces several important points:

  • Applicant Responsibility: Applicants for COTs must follow policy by applying to their national authorities and obtaining documented refusals; mere subjective fear is insufficient without evidence.
  • Rational Policy Application: The Home Office may lawfully require documentary proof of refusal before issuing a COT, and Courts will respect that rational framework.
  • Limited Article 8 Obligation: States do not incur a broad positive obligation to issue travel documents under Article 8; any duty is triggered only if policy requirements are met and must then be weighed against public order and security objectives.
  • Future Litigation: Challengers should present clear evidence of risk in approaching national authorities or rationale for policy departure; speculative assertions will not suffice.

Complex Concepts Simplified

  • Certificate of Travel (COT): A Home Office–issued document permitting foreign nationals with leave to remain (but without a national passport) to travel abroad and return to the UK.
  • “Unreasonably refused”: In policy terms, a passport application to a national authority must have been formally made and denied for reasons not attributable to applicant’s error or lack of documentation.
  • Rationality Review: A standard of public law review requiring decision-makers to act logically and within the bounds of their policy; a decision is irrational only if no reasonable authority would have reached it.
  • Article 8 ECHR: Protects the right to respect for private and family life. It may give rise to a positive obligation on States, but that obligation is not unlimited and must be balanced against legitimate public-order aims.

Conclusion

The Court of Appeal’s ruling in KH R v SSHD confirms that Home Office COT policy is rational, lawful, and compatible with Article 8 ECHR when properly applied. Applicants must follow clear procedural steps—apply to their declared national authority, obtain refusal evidence, and comply with follow-up requests. In absence of such proof, the Home Office may proportionately refuse a COT without violating Convention rights. This precedent will shape future judicial review challenges to travel-document refusals and underscores the importance of evidentiary diligence by applicants.