United Kingdom - AS (AP) v. Secretary of State for the Home Department

The case concerns an application for asylum by a Cameroonian national, a single mother with a child born in the UK. The applicant claimed that the child’s father was a German national exercising his EEA treaty rights in the UK, and that the child may accordingly be a British citizen. The Court of Session held that the Upper Tribunal erred in not adjudicating an application for directions filed by the applicant to obtain documents to ascertain the father’s nationality. In respect of the documents required, the court held that there was no duty to enquire on the part of the Secretary of State, to identify and produce appropriate documents. The court also noted that the applicant’s situation as a single mother with a child who would be without family support was a material consideration in assessing her claim for asylum.

Case name (in original language)
AS (AP) v. Secretary of State for the Home Department
Case status
Case number
[2022] CSIH 16
Date of decision
Court / UN Treaty Body
Court of Session (Scotland)
Language(s) the decision is available in
Applicant's country of birth
Applicant's country of residence
United Kingdom
Relevant Legislative Provisions

The Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules, 2014, Rule 2, Rule 4

The Tribunal Procedure (Upper Tribunal) Rules, 2008, Rule 2, Rule 5


The appellant is a national of Cameroon who came to the UK as a student in 2013. Her daughter was born in the UK in 2015. Mr. Ekemba, named as the father on the birth certificate, was a national of the Democratic Republic of Congo. The appellant, who had separated from him in 2016, claimed that he had previously acquired German nationality and was exercising his EEA treaty rights in the UK. (Para 1-2)

In 2016, the appellant claimed asylum due to fear of abuse by her father if she were to return to Cameroon. The First Tier Tribunal (‘FtT’) dismissed the claim, finding, inter alia, that there was no reliable evidence to indicate that the appellant could not live safely in a different part of Cameroon to her family home, and that no reliable evidence had been produced of the father’s nationality. The FtT, by its decision of 25 August 2017, found that the child was not a British citizen. (Para 3-5)

Permission to appeal to the Upper Tribunal (‘UT’) was granted on the basis that, inter alia, it was unclear whether the child was an EEA national. The UT issued directions to the appellant’s agents to gather more information about the nationality of the child and her father, in the best interests of the child. (Para 7-8)

The appellant proposed that various directions should be issued to the respondent and various other governmental departments to secure information held about Mr. Ekemba that might show his nationality, his exercise of EU treaty rights, his occupation, and any benefits claimed. This application was not determined. The UT found that the appellant had not shown that she had exhausted reasonable enquiries and it held that the respondent did not have a duty to investigate the appellant’s claims about the child’s father’s nationality. (Para 9-10)

Despite greater information about the father being available at this stage of the proceedings, the UT did not consider this information. It found instead, that the new information could have been ascertained by the appellant at an earlier stage. The UT held that the FtT’s decision was a legally adequate resolution of the claim, as the FtT did not act in error on the basis of the materials before it. (Para 10-11)

Permission was granted to appeal the UT’s decision before the Court of Session on the following grounds:

  1. The UT was wrong to find that there was no duty on the part of the respondent to investigate or produce evidence of the nationality of the appellant’s daughter;
  2. The UT acted irrationally and unfairly in declining to consider the evidence put before it on a point which the UT itself had decided was necessary to obtain in the best interests of the child; and
  3. The UT was wrong to find that the FtT’s decision on internal relocation was accurate. (Para 12)
Decision & Reasoning

The court examined the rules concerning the FtT and UT to find that either Tribunal possesses the power, on application made to it, to require the Secretary of State (as a party) to provide information or evidence. The power is a discretionary, case management power that imposes a limited duty of disclosure on the Secretary of State. The court relied on NA v. Secretary of State, and CM (Zimbabwe) v. Secretary of State for the Home Department [2013] EWCA Civ 1303.

The court further relied on Singh v. Belgium (ECHR, 2013), Tanveer Ahmed [2002] UKIAT 00439, and PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1 WLR 1322 to elaborate on the scope of the duty to enquire. The case law makes it clear that an obligation can arise exceptionally, requiring the Secretary of State to make pro-active enquiries of an institution, organisation or individual, about the nature or content of a document which has been provided by the applicant. This is an obligation which is different in nature and scope from any duty to provide disclosure of material held by the Secretary of State in her records and which might be of assistance to an applicant’s claim.

The court noted that the decision in AR v Secretary of State for the Home Department [2017] CSIH 52 was not in conflict with the scope of the duty described above. (Para 36)

The court further noted that the Singh v. Belgium line of authority had only thus far been applied in the context of Article 3 of the Convention, while the present case concerned Article 8. The court held that while there may be some situations involving a claim under Article 8 in which an appellant seeks to rely on a document which he or she produces, which goes to the heart of the claim, the present appellant’s case could not be seen as meeting that threshold. (Para 37)

The court held that no duty of enquiry into the nationality of the appellant’s daughter arises as a consequence of the jurisprudence relied upon. (Para 39)

The court accepted the concessions of the respondent that the UT erred in law by proceeding upon the view that the appellant had failed to pursue reasonable enquiries of her own, and in not determining the appellant’s application for directions. (Para 42)

The court noted that the appellant’s situation as a single mother with a child who would be without family support was a material consideration in assessing whether she would find herself destitute on return, and accordingly was material to the determination of the Article 3 assessment required to be carried out. The court therefore accepted the submission that the FtT erred in law by failing to give adequate reasons for its finding on this material matter and that the UT subsequently erred in law by failing to recognise this. (Para 47)


The appeal was allowed and the decision of the UT was set aside. The case was remitted to the UT to determine the application made to it in terms of the UT Rules and to reconsider the appeal against the FtT’s decision in light of this opinion, and any material which may emerge in the event of the application being granted. The court also directed that the UT which determines the application and reconsiders the appeal should not include the judge who had previously adjudicated the case. (Para 48)

Caselaw cited

MST & Others [2016] UKUT (IAC) 337

CM (Zimbabwe) v. Secretary of State for the Home Department [2013] EWCA Civ 1303

Singh & Ors. v. Belgium, No. 33210/11 (ECHR, 2013)

Tanveer Ahmed [2002] UKIAT 00439 

PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1 WLR 1322