KH, R (On the Application Of) v Secretary of State for the Home Department

Factual and Procedural Background

This appeal concerns a decision of the Upper Tribunal refusing permission to apply for judicial review of the Secretary of State for the Home Department's refusal of an application for a certificate of travel by the Appellant, a foreign national with leave to remain in the United Kingdom as the parent of British national children.

The Appellant initially claimed asylum in 2011 on the basis of a well-founded fear of persecution in Eritrea due to her religion and circumstances concerning her father. The Secretary of State refused asylum, concluding that the Appellant was not a refugee or entitled to humanitarian protection, and doubted her Eritrean nationality, instead considering her Ethiopian. The First-tier Tribunal dismissed her appeal against this refusal.

In May 2023, the Appellant applied for a certificate of travel claiming Eritrean nationality and inability to obtain an Eritrean passport. She was reminded to provide documentary evidence of refusal from the Eritrean embassy but did not do so. Her application was refused on 1 September 2023.

The Appellant sought permission from the Upper Tribunal to apply for judicial review of this refusal, which was refused both on paper and after oral hearing. The Appellant was granted permission to appeal on four specified grounds.

Legal Issues Presented

1. Whether the Upper Tribunal was correct in finding the Secretary of State acted rationally in assessing the certificate of travel application on the basis of the Appellant's self-declared Eritrean nationality rather than the Ethiopian nationality previously found.
2. Whether it was lawful and rational for the Secretary of State to expect the Appellant to attend the Eritrean embassy despite rejection of her Eritrean nationality by the Secretary of State and First-tier Tribunal.
3. Whether the Secretary of State lawfully and properly exercised discretion when applying the certificate of travel policy.
4. Whether the refusal to issue a certificate of travel breached Article 8 of the European Convention on Human Rights ("the Convention").

Arguments of the Parties

Appellant's Arguments

• The certificate of travel policy aims to assist those unable to obtain a passport from their national authorities.
• The Secretary of State and First-tier Tribunal found the Appellant to be Ethiopian, so processing the application on the basis of Eritrean nationality was irrational.
• It was irrational and unreasonable to expect the Appellant to attend the Eritrean embassy given her subjective fear of persecution, although no direct evidence of this fear was provided.
• The Secretary of State failed to lawfully consider exercising discretion and did not take into account all circumstances and representations.
• The refusal breached Article 8 of the Convention by denying the Appellant a practical and effective right to travel without sufficient justification.

Respondent's Arguments

• The certificate of travel policy is designed to enable persons with leave to remain who cannot obtain a travel document from their national authorities to travel abroad.
• It was rational to assess the application on the basis of the Appellant's claimed Eritrean nationality, as that was the basis of her application.
• The Home Office country policy notes risks relate to return to Eritrea, not attending the Eritrean embassy in London.
• No reason was provided to depart from the policy; the Appellant and her advisers failed to respond to requests for documentary evidence of refusal by the Eritrean authorities.
• The refusal does not interfere with the Appellant’s Article 8 rights because she failed to undertake the necessary procedures to obtain a travel document.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Iletmis v Turkey (App no. 29871/96)	Consideration of Article 8 and Article 2 of Protocol 4 regarding passport confiscation and travel rights.	Referenced to illustrate the context where passport confiscation prevents travel and the overlap of Convention rights, but distinguished as the present case involves no such confiscation or travel ban.
LB v Lithuania (App no. 38121/20)	Interpretation of Article 2 of Protocol 4 concerning refusal of alien's passport and proportionality of state actions.	Used to highlight that refusal to issue travel documents must be justified and proportionate; however, the facts differ as the Appellant here has not shown objective reasons preventing application for a passport.

Court's Reasoning and Analysis

The court analysed the application of the certificate of travel policy, which permits issuance to persons with leave to remain who cannot obtain passports from their national authorities, provided they demonstrate an unreasonable refusal by those authorities. The Appellant applied as an Eritrean national and was reasonably expected to apply to the Eritrean embassy for a passport and provide evidence of refusal. Despite an explicit request for documentary evidence, the Appellant and her advisers did not respond.

The court found no irrationality in assessing the application on the basis it was made (Eritrean nationality) rather than on the Ethiopian nationality found in earlier proceedings. The Appellant provided no evidence of a subjective fear preventing her from approaching the Eritrean embassy, and the risk of persecution upon return to Eritrea does not equate to a risk in merely attending the embassy in London.

The Appellant also did not pursue alternative routes, such as applying for a certificate of travel as an Ethiopian national or requesting the Home Office to seek confirmation from the Ethiopian embassy, further undermining any claim of unreasonable refusal.

Regarding Article 8 of the Convention, the court noted no positive obligation on the United Kingdom to issue a travel document absent evidence of unreasonable refusal by national authorities. The refusal was proportionate and necessary to protect national security and public order, and the Appellant's inability to travel was attributable to her failure to take required steps.

Holding and Implications

The court DISMISSED the appeal.

The decision to refuse the certificate of travel was lawful, rational, and compatible with Article 8 of the Convention. The Appellant remains able to re-apply if she complies with policy requirements or provides valid reasons for non-compliance. No new precedent was established; the ruling applies the existing policy and legal principles to the facts of the case.