Court of Appeal finds Home Office justified in refusing certificate of travel

The Court of Appeal has upheld a decision by the Home Office to refuse a certificate of travel to a woman granted leave to remain on family grounds following an unsuccessful asylum claim. The claimant in R (KH) v The Secretary of State for the Home Department [2025] EWCA Civ 675 had previously applied for asylum on the basis that she was Eritrean.

The Home Office refused the claim, finding she was Ethiopian, not Eritrean. This finding was maintained on appeal, which was dismissed. She was subsequently granted leave as a parent of a British child, with her nationality recorded as Eritrean.

Certificate of travel

A certificate of travel is a Home Office travel document that you can apply for if you’re unable to obtain a passport from your country of origin. It effectively functions as a passport that allows you to travel abroad, with some limitations.

You generally have to have a good reason for not being able to obtain a passport from your home country, most commonly that you have been unreasonably refused a passport by the authorities of your home country, which can be tricky because this requires evidence that the relevant embassy may not be willing to offer, even if they do turn down your passport application.

This is separate to a Convention travel document issued to refugees, for which the only relevant qualification is that you have been recognised as a refugee and thus it would be unreasonable to expect you to get a passport from that country’s authorities (and, indeed, could even put your refugee status at risk if you do).

The application

In May 2023, the claimant applied for a certificate of travel on the basis that she is Eritrean and unable to obtain an Eritrean passport.

The documents submitted with the application did not include the required evidence from the embassy to show she had been unreasonably refused a national passport but an explanation was provided that she is not able to provide this evidence because she is Eritrean and is thus “unable to obtain an Eritrean passport as a failed asylum seeker”.

It seems she did approach the Ethiopian embassy, who verbally confirmed to her that they cannot issue her a passport, though no formal passport application was made. A witness statement made by a person who accompanied her confirmed that the Ethiopian embassy may have been willing to confirm this in writing but only in response to a letter from the Home Office, though she did not make such a request to the Home Office.

On 1 August 2023, the Home Office sent an email requesting evidence that the Eritrean embassy had “formally and unreasonably” refused her passport application. This email was not responded to.

On 1 September 2023, the Home Office refused the application on the following grounds:

On 01/08/23 you were asked to provide a letter from the embassy. I have not received a reply. Your application has therefore been considered on the basis of the information available and refused as it does not meet our published criteria – in order to have been formally and unreasonably refused a passport, you must first have made a formal application for a passport to your national authorities. The letter you have provided does not show you have made a formal application. You therefore do not meet our issuing criteria for a COT.

Judicial Review

The claimant was refused permission by the Upper Tribunal on the papers and following an oral hearing, Permission was refused on the ground that KH failed to follow the process for ruling out the possibility of obtaining a national passport from Eritrea. This was because she did not approach that embassy at all, despite the finding from the Home Office and tribunal that she was not at risk of persecution in Eritrea.

Alternatively, permission was refused because she had failed to rule out the possibility of obtaining a national passport from Ethiopia because she never made a formal passport application. The tribunal said that given her correspondence with this embassy confirmed that she did not believe she was Ethiopian, it is not surprising that they did not entertain a passport application from her.

The decision was appealed to the Court of Appeal on four grounds. These included that the Upper Tribunal was wrong to find that the Home Office acted rationally by processing her application as though she were an Eritrean national, despite its earlier findings. It was also argued that it was irrational to expect her to approach the Eritrean embassy, despite the fact that her asylum claim was refused by the Home Office and First-tier Tribunal.

Decision

The Court of Appeal dismissed the claim, finding that it was not irrational for the Home Office to process the application on the basis of her claimed nationality and all that this entails:

31. The appellant applied on the basis that she was a national of Eritrea. It was not irrational for the respondent to assess her application on that basis. It was not irrational, therefore, to expect her to apply to the Eritrean embassy for a passport. The policy requires her to provide evidence that she had applied to her country’s national authorities for a passport and that her application had been refused.

[…]

33. Thirdly, there is no basis for concluding that the reason why the appellant did not approach the Eritrean embassy was because she had a subjective fear of doing so. There is no evidence from the appellant that she had such a fear. There is a reference in the letter of 12 May 2023 (repeated in subsequent documents) that “she would be likely to be at risk if she attended the embassy”. But there is no reason for concluding that she would be at risk merely by attending the Eritrean embassy or applying to them for a passport. The appellant says that she would be at risk if returned to Eritrea and points out what might happen if she did return there. That does not, however, indicate a risk that she cannot even approach the Eritrean embassy in London.

Effectively: yes, you can be considered as a national of the country you claim to be from but where your prior claim that you would be at risk of persecution in that country was rejected, you have to provide additional reasons and also show how simply approaching the embassy when you have a (limited) right to remain in the UK would put you in danger.

The court also covered the Ethiopian angle, concluding that she might have been able to make an application on this basis instead:

35. For completeness, a possible alternative approach on the part of the appellant would have been to apply for a certificate of travel on the basis that she was considered by the respondent, and the First-tier Tribunal in 2011, to be an Ethiopian national. She could then have applied for an Ethiopian passport and, on her case, she would have been refused a passport. She did not make an application for a certificate of travel on that basis. Nor did she apply to the Ethiopian embassy for a passport. Further, she did not even ask the Home Office to write to the Ethiopian embassy to ask for confirmation that they would not grant her an Ethiopian passport as, it seems, had been suggested to her by the Ethiopian embassy. She did none of those things.

The associated article 8 ground was also dismissed.

Conclusion

The claimant here found herself in a bit of a tricky spot. If she is indeed Eritrean, she could have applied on that basis and made a formal passport application to the Eritrean authorities, notwithstanding her fear of persecution, as unattractive as that may be if her fear is genuine.

However, despite the fact that the court believed “If she does so and is unreasonably refused, she would be entitled under the policy to be issued with a travel certificate”, I have my doubts. It would not surprise me if the Home Office refused such an application on the basis that she is not Eritrean but Ethiopian.

Conversely, a passport application to the Ethiopian embassy would be bound to fail if she is Eritrean. At the same time, she would presumably not be able to provide any documents that would evidence her Ethiopian nationality that would be required for the application. In those circumstances, it is possible her passport application would not even be processed at all or refused on the basis of the missing documents, which could lead the Home Office to conclude that the application was not “unreasonably” refused.

The Upper Tribunal commented that, with respect to Ethiopian documents required for a passport application, “there was no evidence that she had attempted to obtain any”. But it is not clear how a person is supposed to do that if they were, in fact, not born in Ethiopia or to Ethiopian parents. If she is Ethiopian, this makes everything much simpler, as she would hopefully be able to obtain the relevant documents and apply for an Ethiopian passport. However, if she is Eritrean, this is of little use to her. 

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