KH, R (on the application of) v The Secretary of State for the Home Department [2025] EWCA Civ 675

[2025] EWCA Civ 675Case No CA-2024-000633
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGE STEPHEN SMITH
JR-2023-LON-002523
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 22 May 2025
Before
LORD JUSTICE DINGEMANSLORD JUSTICE LEWISLORD JUSTICE SNOWDEN
Between
THE KING (on the application of KH)AppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
Sonali Naik KC and Eva Doerr (instructed by Duncan Lewis) for AppellantMatthew Fraser (instructed by the Government Legal Department) for RespondentHearing Hearing date: 7 May 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 23 May 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................
[1]This is an appeal against a decision of the Upper Tribunal refusing permission to apply for judicial review of a decision of the respondent, the Secretary of State for the Home Department, refusing an application by the appellant, KH, for a certificate of travel.[2]In summary, the appellant is a foreign national who has been granted leave to remain in the United Kingdom as the parent of children who are British nationals. In 2011, the appellant had applied for asylum on the basis that she had a well-founded fear that she would be persecuted if she were returned to Eritrea because of her religion, things that had happened to her father, and the fact that she claimed she had had to leave Eritrea illegally. The respondent refused the claim and concluded that the appellant was not a refugee and was not entitled to humanitarian protection. The respondent did not believe that the appellant was Eritrean but believed that she was Ethiopian and, in any event, considered that she would not be subject to persecution in Eritrea for the reasons given. The First-tier Tribunal dismissed an appeal against that decision.[3]In May 2023, the appellant applied for a certificate of travel on the basis that she was a national of Eritrea and unable to obtain an Eritrean passport. The appellant was reminded by e-mail that she was required to provide documentary evidence that the Eritrean embassy had refused to issue a passport. She did not do so. On 1 September 2023, her application was refused.[4]The appellant applied to the Upper Tribunal for permission to apply for judicial review of the decision refusing the application for a certificate of travel. That application was refused on the papers and again following an oral hearing.[5]The appellant has permission to appeal against the decision of the Upper Tribunal on four grounds, namely Ground 1. The Upper Tribunal was wrong in finding that the respondent acted rationally when assessing the appellant’s application for a certificate of travel on the basis of her self-declared nationality (i.e. Eritrean) and not as an Ethiopian national that the respondent and the First-tier Tribunal had found her to be. Ground 2. The Upper Tribunal erred in law in finding that it was rational of the respondent to expect the appellant to attend the Eritrean embassy, in circumstances where her claim to be an Eritrean national had been rejected by the respondent and the First-tier Tribunal. Ground 3. The Upper Tribunal should have found that that the respondent failed properly and lawfully to consider the exercise of discretion when applying her policy. Ground 4. The Upper Tribunal should have found that the respondent’s refusal to issue the appellant with a certificate of travel breached Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”).

THE POLICY

[6]The respondent has issued a policy on when certificates of travel may be issued to non-United Kingdom nationals. The material parts provide as follows:
“1. Overview You can apply for a document to travel outside the UK if • you are not British • you cannot use or get a passport from your country’s national authorities • your country’s national authorities cannot give you a new passport ….. Eligibility To apply you must be living in the UK because of one of the following • you have permission to stay as a refugee • you have humanitarian protection and it has been officially accepted that you have a fear of your country’s national authorities • you are not recognised as a citizen of any country (a ‘stateless person’) and you have permission to stay (known as ‘indefinite leave to remain’) • you have permission to stay (known as ‘leave to remain’) or you are settled in the UK (known as ‘indefinite leave to remain’), but you cannot get a passport or travel document from your country’s national authorities You must be in the UK when you apply. ….. 4. Certificate of travel You can apply for a certificate of travel if one of the following is true: • you have permission to stay (known as ‘indefinite leave to remain’), and you have been refused a passport or travel document by your country’s national authorities ….. Proving you have been ‘unreasonably refused’ a travel document Depending on your circumstances, you might need to prove that you’ve applied for a passport from your country’s national authorities and your application was ‘unreasonably refused’. You must provide evidence of this if one of the following is true: • you do not have permission to be in the UK as a refugee or stateless person • you have humanitarian protection but it has not been officially accepted that you have a fear of your country’s national authorities Your application is not considered ‘unreasonably refused’ if one of the following is true • you applied incorrectly or without enough supporting evidence to confirm your identity and nationality ….. You do not have to prove that you have been ‘unreasonably refused’ a passport if one of the following is true: • you have been granted humanitarian protection and its been officially accepted that you have a fear of your country’s national authorities • you must be in your country to apply for a passport • your country’s national authorities cannot issue passports in the UK or send an application to your own country to be processed.” • you are not British • you cannot use or get a passport from your country’s national authorities • your country’s national authorities cannot give you a new passport Eligibility • you have permission to stay as a refugee • you have humanitarian protection and it has been officially accepted that you have a fear of your country’s national authorities • you are not recognised as a citizen of any country (a ‘stateless person’) and you have permission to stay (known as ‘indefinite leave to remain’) • you have permission to stay (known as ‘leave to remain’) or you are settled in the UK (known as ‘indefinite leave to remain’), but you cannot get a passport or travel document from your country’s national authorities • you have permission to stay (known as ‘indefinite leave to remain’), and you have been refused a passport or travel document by your country’s national authorities Proving you have been ‘unreasonably refused’ a travel document • you do not have permission to be in the UK as a refugee or stateless person • you have humanitarian protection but it has not been officially accepted that you have a fear of your country’s national authorities • you applied incorrectly or without enough supporting evidence to confirm your identity and nationality • you have been granted humanitarian protection and its been officially accepted that you have a fear of your country’s national authorities • you must be in your country to apply for a passport • your country’s national authorities cannot issue passports in the UK or send an application to your own country to be processed.”
THE FACTS The Background

THE FACTS

[7]The appellant was born on 16 June 1985 and says that she is a national of Eritrea. She left Eritrea in 2002 and went to live in Sudan for six years. In 2008, the appellant travelled to Turkey, stayed for a week, then travelled to Greece. The appellant remained in Greece from September 2008 until 16 July 2011. She then flew to France and remained there until 18 July 2011. She then travelled to the United Kingdom in the back of a lorry and arrived in the United Kingdom on 19 July 2011.

The claim for asylum

[8]On 20 July 2011, the appellant claimed asylum. The basis of her claim was that she was an Eritrean national. She said that she was in fear of the government because she was a Pentecostal Christian and because she had left Eritrea illegally. She claimed that her father had been a preacher in the Pentecostal church, their home had been raided, and her father arrested in 2002.[9]By letter dated 15 August 2011, the respondent concluded that the appellant did not qualify for asylum or humanitarian protection and refused her claim. The letter explained the respondent’s reasons and said:
“19. For the reasons noted above, it is not accepted that you are a national of Eritrea but that you are a national of Ethiopia. Consideration has been given to whether there is a real risk of persecution or a breach of the ECHR in Eritrea or Ethiopia, however, for the reasons given, you have failed to establish a real risk of persecution or a breach of the ECHR in either country. You will therefore be removed to Ethiopia. The Notice of Immigration Decision will specify both Eritrea and Ethiopia in order for the issue to be raised at appeal, should you choose to exercise your right of appeal against the decision. 20. You claim to be a Pentecostal Christian, however, this is not accepted for the reasons noted below.”
[10]The letter then explained why the respondent did not accept the appellant’s account of her religious beliefs or what she said had happened in Eritrea. It said at paragraph 30 and 35:
“30. For these reasons therefore it is not accepted your house was raided by the police and your arrested as a result leading you to flee from Eritrea and exit illegally. ….. Summary of Findings 35. In summary, it is not accepted you are an Eritrean national. It is not accepted you are a Pentecostal. It is not accepted you came to the adverse attention of the Eritrean authorities or that this led to you fleeing from Eritrea and existing illegally.”

Summary of Findings

[11]The appellant appealed against that decision to the First-tier Tribunal which dismissed the appeal by a decision dated 24 November 2011. At paragraph 4 of its reasons, the First-tier Tribunal summarised the appellant’s case, noting that she had said that she could not return to Eritrea as she feared the authorities would arrest her, and subject her to severe punishment or death as a Pentecostal Christian who had left Eritrea illegally. It noted that the core of her claim that she was at risk was her conversion to Pentecostalism, her father’s arrest and her subsequent escape from the authorities and her illegal departure from Eritrea. It then reviewed the evidence it had heard, including the appellant’s oral evidence and assessed her credibility. Its conclusion is at paragraph 51 and 52 in the following terms:
“51. Standing back to look at this evidence in the round, I am not satisfied even on the applicable lower standard of proof, that the Appellant has undergone the experiences in Eritrea that she has described. I do not accept her evidence that she is a national of Eritrea. I do not accept that she is a Pentecostal Christian. I do not accept that she was expelled from Ethiopia to Eritrea. Nor do I accept that she is wanted by the Eritrea authorities as an escapee, or that she left Eritrea illegally. I find it is reasonably likely that as an Amharic speaker she is a citizen of Ethiopia. There is no basis upon which I could find that she faces any risk of deportation in the future from Ethiopia to Eritrea. She is not therefore outside Ethiopia as a result of any fear of persecution there for any Convention reason. I can see no basis upon which she could not be expected to travel there and resume the life that she led there, prior to travelling to the United Kingdom. I am not satisfied in the circumstances that she faces any risk upon return to Ethiopia. 52. In the event that removal directions were set for Ethiopia, I can see no basis for a claim by her to either refugee status, or humanitarian protection, and I am satisfied on my findings that removal to Ethiopia would not engage her Article 3 or Article 8 rights.”

Further representations and the grant of limited leave to remain

[12]On 5 December 2012, the appellant made further representations. By letter dated 21 November 2017, the respondent re-affirmed the decision of 15 August 2011. She decided that the appellant did not qualify for asylum or humanitarian protection. However, the respondent granted the appellant discretionary leave to remain limited to 30 months.[13]The appellant has never, therefore, been eligible for, nor been granted, asylum or humanitarian protection in the United Kingdom. Her position is that she is a person who requires leave to remain in order to be lawfully in the United Kingdom.

The grant of leave to remain

[14]On 28 January 2022, the appellant applied for leave to remain on the basis that she was the mother of children who were British nationals. In that application, she again gave her country of nationality as Eritrea.[15]On 22 October 2022, the appellant was granted leave to remain as a family member pursuant to Appendix FM to the Immigration Rules. The appellant was issued with a Biometric Residence Permit which shows her nationality as Eritrean.

The application for a certificate of travel

[16]On about 12 May 2023, the appellant applied to the respondent for a certificate of travel. In the application form, she gave Eritrea as her country of nationality.[17]The form included a question asking her if she could provide a letter from her Embassy showing they have formally and unreasonably refused the application for a passport document and, if not, to explain why she could not provide a letter and provide documents to support the explanation.[18]The appellant said no in response to the question about whether she could provide a letter from her Embassy. Her explanation was:
“[The appellant] is applying for a Certificate of Travel on the basis that she is a national of Eritrea and unable to obtain an Eritrean passport as a failed asylum-seeker. The HO doubted [the appellant’s] nationality and believed her to be Ethiopian. [The appellant sought formal confirmation, but the Ethiopian Embassy told her they could not produce a document confirming or denying that [she] was entitled to an Ethiopian passport. They do not accept [she] is Ethiopian.”
[19]The appellant’s immigration advisers also provided a letter dated 12 May 2023 with the application. That stated that the appellant was applying for a certificate of travel on the basis that she was a national of Eritrea and was unable to obtain an Eritrean passport as a failed asylum-seeker. It gave as the reason that:
“Reasons why the applicant is unable to obtain an Eritrean passport Although [the appellant’s] asylum claim was rejected, country background information indicates that she remains at risk on return as a failed asylum-seeker, and would be likely be at risk if she attended the Eritrean embassy to obtain a passport. See section 18 of the Home Office CPIN, in particularly paragraphs 18.1.1, 18.2.2. and 18.3.1 – on return she would be required to admit illegal exist and accept a criminal penalty for, she would be likely to get rough treatment as a failed asylum-seeker and would be likely to be forced into national service even as a voluntary returnee.”
[20]The letter also stated that the appellant had sought formal confirmation that she was not recognised as an Ethiopian national. To that end, it was said that she had visited the Ethiopian embassy on 17 April 2023 and that the Ethiopian embassy did not accept the appellant was an Ethiopian national but would only provide written confirmation of that in reply to a formal letter from the Home Office. That was confirmed in a witness statement signed by the person who accompanied her to the Ethiopian embassy. That said at paragraph 4 that:
“At 09.35 a.m. the official explained to us that he could not produce a document confirming or denying that [the appellant] was entitled to an Ethiopian passport. He said that they do not accept [the appellant] is Ethiopian, but will need a letter addressed to the Embassy from the Home Office if they are to produce a reply.”
[21]The appellant has never asked the Home Office to send such a letter to the Ethiopian embassy.[22]On 1 August 2023, the respondent sent the appellant’s immigration adviser an e-mail referring to the application for a certificate of travel and said this:
“The responsibility for documenting foreign nationals’ resident in the United Kingdom who do not submit evidence of a formal and unreasonable refusal of a national passport, and who have not been recognised as Refugees or Stateless, rests with their national authorities. Applicants must provide documentary evidence that they have been formally and unreasonably refused a passport by the authorities of the country of which they are from when making an application for a COT. To continue your application for a Home Office travel document please provide further official evidence from the Eritrean embassy stating that they refuse to issue you a passport, an official embassy letter is required along with proof of application for a passport.”
[23]Neither the appellant nor her immigration adviser responded to this e-mail. There is no evidence before this court as to why neither of them did so.[24]On 1 September 2023, the respondent refused the application for a certificate of travel and said the following:
“Reasons for decision 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. There is more guidance on the criteria for COTs and the evidence required on the GOV.UK website …. You are not entitled to a refund but you can re-apply.”
You are not entitled to a refund but you can re-apply.”

The claim for judicial review

[25]The appellant issued a claim for judicial review of the decision refusing a certificate travel. In the statement of facts and grounds, she said that the Ethiopian embassy had refused to issue her with a passport. She stated that she could not contact the Eritrean embassy as she had a well-founded fear of persecution. She claimed that the reason why her asylum claim failed was based on the mistaken conclusion that she was Ethiopian not Eritrean and “Had the [appellant’s] account of her nationality been accepted, she would have highly likely succeeded in her asylum claim and [been] granted international protection in the UK” (paragraph 3 of the statement of facts and ground attached to the claim form). Paragraph 7 referred to the fact that the appellant would be at risk on return to Eritrea as a Pentecostal Christian, for having left illegally and as a failed asylum seeker. Against that background, she advanced three grounds of claim. It was said first, that the decision breached the respondent’s own policy, secondly, that the decision fettered the respondent’s discretion and was irrational, and thirdly that it breached Article 2 of Protocol No. 4 to, and/or Article 8 of, the Convention.[26]Permission was refused on the papers and again following an oral hearing. The Upper Tribunal gave reasons which should be read in their entirety. In said this:
“(8) The grounds are not arguable. In relation to ground 1, the Secretary of State was unarguably entitled to conclude that the applicant’s application for a passport in her claimed nationality had not been unreasonably refused. Her application for a travel document was submitted on the basis that she was Eritrean. It was unarguably reasonable for the Secretary of State to assess the application pursuant to his published policy, which would require the applicant to demonstrate that her passport application was incorrectly or unreasonably refused. On 1 August 2023, the Secretary of State invited the applicant to provide evidence that the Eritrean authorities had refused to issue her with a passport. The applicant did not respond to that request. In light of [the First-tier Tribunal’s] findings that the applicant was not at real risk of being persecuted in Eritrea, it was unarguably rational for the Secretary of State to have expected the applicant first to have applied to her claimed national authorities for a passport. Since the applicant had not done so, there was no arguable unlawfulness in the Secretary of State’s decision on the terms that it was made (that is, by a claimed citizen of Eritrea), nor in the Secretary of State’s conclusion that the applicant had not demonstrated an application to the Eritrean authorities had been unreasonably refused. (9) To the extent that the applicant contends that the Secretary of State should have assessed her application as a citizen of Ethiopia, similar considerations apply. The applicant had unarguably not applied correctly and had not submitted a formal application to the Ethiopian authorities. Her correspondence to the Ethiopian Embassy was expressly premised on the basis that she was an Eritrean citizen, not a citizen of Ethiopia. It is hardly surprising that the Ethiopian authorities did not entertain an application for an Ethiopian passport from an individual claiming to hold the nationality of another state that was not submitted pursuant to the correct process. While Ms Doerr submitted that the applicant did not have any of the required Ethiopian supporting documents, there was no evidence that she had attempted to obtain any.”

GROUNDS 1 TO 3 – THE LAWFULNESS OF THE DECISION

[27]The appellant has permission to appeal on the four grounds set out above. It is convenient to take the first three grounds together. Submissions[28]Ms Naik KC, with Ms Doerr, for the appellant submitted that the purpose underlying the policy was to ensure that those who could not get a passport from their national authorities would be able to obtain a certificate of travel from the Home Office. The respondent, and the First-tier Tribunal, had found that the appellant was an Ethiopian national. It was, therefore, irrational for the respondent to process the application on the basis that the appellant was an Eritrean national. Further, Ms Naik submitted that it was irrational to expect the appellant to attend the Eritrean embassy as she had a subjective fear of approaching the Eritrean authorities. Ms Naik accepted that there was no evidence from the appellant that she had such a subjective fear. She relied upon the material contained in the application for a certificate and the letter of 12 May 2023 in support of that application. In response to questions as to why approaching the Eritrean embassy would put the appellant at risk, Ms Naik submitted that if the appellant were to be removed to Eritrea (and her leave to remain was limited so the prospect of her being removed from the United Kingdom could not be discounted), she would suffer persecution on return for the reasons set out in the letter of 12 May 2023. Finally, Ms Naik submitted that the respondent had failed to consider exercising her discretion and had not considered the application for a certificate of travel in the light of all the circumstances and all the representations made, and had simply refused it on the basis that the appellant had not made a formal application for a passport to the Eritrean embassy.[29]Mr Fraser, for the respondent, submitted that the certificate of travel policy was a simple policy designed to enable persons who had leave to remain in the United Kingdom to be able to travel abroad in circumstances where they could not obtain a travel document from their national authority. It was rational for the respondent to assess the application on the basis of the appellant’s claimed Eritrean nationality, which was the basis on which she applied for a certificate of travel. The matters relied upon in the Home Office country policy and information note to justify not going to the Eritrean embassy in London in fact related to the treatment of Eritrean nationals on their return to Eritrea. While there may be cases where it would be appropriate to depart from the policy, no such reason for doing so had been put forward by the appellant. She and her advisers had simply not replied to the request for documentary evidence that she had been refused a passport by the Eritrean authorities. Discussion[30]The position is that the appellant is a person with leave to remain in the United Kingdom. The certificate of travel policy provides that such persons may be provided with a certificate of travel if they cannot get a passport or travel document from their own country’s national authorities. As a person with leave to remain (as the appellant was not a refugee or a person entitled to humanitarian protection), she was required to provide evidence that she had applied for a passport from her country’s national authorities and that the application had been unreasonably refused. That appears from the terms of the policy itself which is set out above.[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. She was expressly asked to do so in the e-mail of 1 August 2023 and neither she nor her immigration advisers responded to that e-mail. She provided no reason why she could not apply to the Eritrean embassy for a passport.[32]Nor was there any basis for considering that it was unreasonable to expect her to apply to the Eritrean embassy for a passport. The appellant did not make a witness statement explaining her reasons. The reasons given on her behalf by counsel are unsubstantiated. It was submitted that the appellant thought that she had provided everything in her application form and supporting documentation sent in May 2023 and did not need to reply. First, there is no evidence from the appellant, nor her immigration adviser (to whom the e-mail was addressed), as to why no response was sent. Secondly, it cannot rationally be the case that they thought that the relevant material had been provided in May 2023. The e-mail of 1 August 2023 was expressly asking for particular documentary evidence – i.e. documentary evidence showing that she had applied for a passport and evidence that the Eritrean embassy had refused - and that had not been provided.[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. Ms Naik submitted that the appellant had limited leave to remain and could, in theory, be removed when that expired. This case is not, however, about what might happen in future in the event that her leave expired and was not renewed and she was then removed from the United Kingdom. There is, moreover, no evidence that the respondent proposes to return the appellant to Eritrea (given that she is believed to be from Ethiopia).[34]There was no unlawfulness, therefore, in the respondent assessing the application on the basis it was made and on the information provided, i.e., that the appellant was an Eritrean national who had failed to provide documentary evidence that she had applied for and been refused a passport by the Eritrean embassy. The respondent had expressly asked her to provide that information in the e-mail of 1 August 2023. She did not reply. She did not give any reason why a departure should be made from the policy on the facts of her case.[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. There was nothing unlawful or irrational in the respondent considering the application for a certificate of travel on the basis that it was in fact made, not the basis upon which it might have been made.[36]In all the circumstances, grounds 1, 2 and 3 are not made out. GROUND 4 – ARTICLE 8 OF THE CONVENTION

Submissions

[37]Ms Naik submitted that the refusal of a certificate of travel was a breach of Article 8 of the Convention. She submitted that the principles applying to Article 2 of Protocol 4 applied to Article 8, relying on the decision of Iletmis v Turkey (App no. 29871/96). She submitted that the refusal of a certificate of travel meant that the appellant did not have a practical and effective right to travel. No sufficient reasons had been provided to justify the refusal. Ms Naik accepted that the policy was justified but submitted that it failed to apply to the appellant’s particular circumstances and the particular decision in the case of the appellant was not justified nor proportionate to the aim pursued by the policy.[38]Mr Fraser submitted that a refusal of a travel document in the circumstances of this case, where the appellant had failed to undertake the relevant procedures to obtain a travel document, did not amount to an interference with the appellant’s rights under Article 8 of the Convention.

Discussion

[39]Article 8 of the Convention provides:

Discussion

“Article 8 - Right to respect for private and family life 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
[40]The material provisions of Article 2 of Protocol 4 provide:
“….. 1. Everyone shall be free to leave any country including his own. 2. No restrictions shall be placed on the exercise of these rights other than such as are in accordance with law and are necessary in a democratic society in the interests of national security or public safety, for the maintenance of public order, for the prevention of crime, for the protection of health and morals, or for the protection of the rights and freedoms of others …..”
[41]We received limited submissions on Article 8 and on Protocol 4. We were told that the United Kingdom has not ratified Protocol 4. It is not listed as a Convention right under the Human Rights Act 1998 and so section 6 of that Act does not make it unlawful to act in a way which is incompatible with that protocol. We were referred to Iletmis. That case concerned a Turkish national who had lived in Germany for 17 years since the age of 22, was married and had two children who also lived in Germany. In 1992 Mr Iletmis was arrested in Turkey whilst on holiday visiting his family. He was charged with offences before the Istanbul National Security Court. His passport was confiscated. He asked the administrative authorities several times to return his passport but they refused. This state of affairs continued for a number of years until he was ultimately acquitted. It was in that context – the confiscation of the passport of a national by the administrative authorities which prevented the individual from travelling to where he and his family lived – that the European Court of Human Rights said that the facts of a case may fall under more than one provision of the Convention, here Article 8 and also Article 2 of Protocol 4 (which had not been ratified by Turkey): see paragraphs 49 to 50 of the judgment.[42]The present case is different. It concerns a person who is not a national of the United Kingdom. There is no prohibition or ban on her leaving the United Kingdom. The issue concerns the extent, if at all, to which there is an obligation on the United Kingdom authorities to provide a certificate for travel where the individual cannot obtain one from her own national authorities. There is no European Court decision dealing with Article 8 in that context.[43]We were referred to the decision of the European Court in LB v Lithuania App no. 38121/20. That decision makes it clear that it was concerned solely with Article 2 of Protocol 4 not Article 8 of the Convention (see paragraphs 54 and 55). We assume, without deciding, that similar principles may be applicable when considering Article 8 of the Convention. In 2001, LB arrived in Lithuania contending that he came from the Chechen Republic. In 2003, he was granted humanitarian protection and given a residence permit for one year. He was provided with an alien’s passport in July 2003. The residence permit was renewed annually between 2004 and 2008. He was then eligible to apply for, and was granted, a five-year residence permit in 2013 and again in 2018. His alien’s passport was renewed between 2004 and 2013. He applied for an alien’s passport in 2018 but this was refused on the grounds that Russian nationals living abroad could obtain a passport at an embassy on the submission of certain documents. Subsequent requests were also refused. The European Court held that Article 2 of Protocol 4 did not impose a general obligation on contracting states to issue aliens residing on their territory with any particular document permitting them to travel abroad (paragraph 59). In LB, it was accepted that the refusal of an alien’s passport constituted an infringement of Article 2.2 of Protocol 4 and the issue was whether it was justified under Article 2.3.[44]In that regard, the European Court identified the following factors in LB. First, the Lithuanian authorities had acknowledged on a number of occasions between 2003 and 2008 that LB could not safely return to his country of origin. Secondly, when he was granted a five year residence permit in 2008, that was because he had become eligible to obtain a more favourable residence permit, not because of any decision by the Lithuanian authorities that he no longer needed protection and could approach the Russian authorities without fear. The Court noted that a foreign national who had been granted subsidiary protection and who stated that he or she was afraid to contact the authorities of the country of origin was considered (under a legal instrument adopted in 2019) “to have an objective reason for not being able to obtain a travel document from those authorities” (paragraph 94). Finally, the Lithuanian authorities had accepted for nearly 10 years that LB was unable to obtain a passport from the Russian authorities. The refusal to grant an alien’s passport was based on a change of practice by the Russian national authorities on issuing passports to Russian nationals living aboard. There was no indication that the Lithuanian authorities had assessed whether it was possible in practice for LB to obtain a Russian passport given that he had lived in Lithuania for almost 20 years and had not had any valid Russian identity documents during that entire time. Accordingly, the European Court found that the refusal to issue the applicant with an alien’s passport was taken without carrying out a balancing exercise ensuring that such a measure was justified and proportionate.[45]In the present case, the appellant is a foreign national who has leave to remain in the United Kingdom. She has never been recognised as qualifying for, and has never been granted, asylum or humanitarian protection. She claims to be an Eritrean national. No objective reason has been shown as to why she cannot apply to the Eritrean embassy for a passport. If she does so and is unreasonably refused, she would be entitled under the policy to be issued with a travel certificate. The respondent invited her to provide the relevant documentary evidence. She did not do so and did not suggest any objectively valid reason why she could not approach the Eritrean embassy. In those circumstances, the respondent did assess her claim on the basis of the information that she had provided. The Upper Tribunal considered that there were a number of steps that the appellant have could take to obtain a certificate of travel and the decision of the respondent was a necessary and proportionate means of achieving the legitimate aim, i.e. national security and public order by ensuring that travel documents are issued to persons who require them and are eligible to receive them, including those who are genuinely unable to obtain the relevant documents from their national authorities. Further, the appellant can re-apply for a certificate of travel. She can either fulfil the requirements of the policy or she can put forward reasons why she should not be asked to apply for a passport from the authorities of the country that she says is her country of origin.[46]I agree that the decision of the respondent is compatible with Article 8 of the Convention. Either the decision of the respondent not to grant this application for a certificate of travel does not amount to an infringement within the meaning of Article 8(1) of the Convention as there is no positive obligation to grant a travel document in the present case or the inability of the appellant to travel is caused by her own failure to take the relevant steps to obtain one. Or the refusal of the application for a certificate of travel on the facts of the present case, is proportionate and necessary in a democratic society to achieve the legitimate aim of protecting national security and public order and any infringement is justified under Article 8(2). I would dismiss ground 4.

CONCLUSION

[47]I would dismiss this appeal. The decision of the respondent on the facts of this particular case was lawful and compatible with Article 8 of the Convention. LORD JUSTICE SNOWDEN[48]I agree. LORD JUSTICE DINGEMANS[49]I also agree.