Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005111

First-tier Tribunal No: PA/54911/2022

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 20th of May 2025

Before

UPPER TRIBUNAL JUDGE RASTOGI

Between

SL
(ANONYMITY ORDER MADE)
Appellant
and

The Secretary of State for the Home Department
Respondent

Representation:
For the Appellant: Mr A. Gilbert, Counsel instructed by Milestone Solicitors
For the Respondent: Mr M. Parvar, Senior Home Officer Presenting Officer

Heard at Field House on 15 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS
1. This is the remaking of the appellant’s appeal against the respondent’s decision of 21 October 2022 in which the respondent refused the appellant’s claim that he was at risk of persecution and/or Article 3 mistreatment on the grounds of being a gay man from Malaysia and also his Article 8 claim based on his private life since his arrival in the UK in 2009.
2. The appellant’s appeal to the First-tier Tribunal (“FtT”) was dismissed by way of a decision dated 23 July 2024. On 3 January 2025 his appeal against that decision was allowed by consent on the basis that the FtT Judge erred in law, primarily by relying on evidence contained within the Country Policy and Information Note: Sexual Orientation and gender identity or expression Malaysia version 2.0 dated July 2024 (the 2024 CPIN”) which was not before her in evidence and in respect of which she did not give the parties an opportunity to comment1. The judge also fell into error by not considering internal relocation through the lens of the expert evidence of Professor Katona. There were certain preserved findings, most particularly that the appellant was a gay man [59] and that gay men are a part of a particular social group (“PSG”) in Malaysia, namely “LGBT2 people” [45] so his claim was for a Convention Reason. I return to the preserved findings below.
3. At the remaking hearing, I had the benefit of a 511 page appeal bundle plus skeleton arguments on behalf of both parties. The appellant had failed to serve the bundle directly on the respondent and Mr Parvar had to chase it the day before the hearing which was when he also received the appellant’s skeleton argument. He quite rightly took issue with the late service, although by the time of the hearing he had been able to prepare the case and produce a detailed skeleton argument. He confirmed he was able to proceed and he conducted the case with his usual diligence and I am grateful to him for that. Mr Gilbert apologised on behalf of those instructing him for the oversight on service and confirmed that the solicitors’ assurance that bundles will be properly served in the future.
4. At [2] of his skeleton argument, Mr Gilbert set out the basis of the appellant’s case including at [3]-[5] reference to the preserved findings, those matters agreed and in dispute. I raised these issues at the start of the hearing in order to clarify and refine them. The following is a summary of that discussion:
a. the issues to decide are whether the appellant, as a gay man and as a member of a particular social group ‘PSG’ (‘LGBT persons’), would face a real risk of treatment amounting to persecution on the grounds of his sexuality on return to his home area;
b. if so, Mr Parvar accepted that the Malaysian state would not be willing to provide sufficient protection to members of the LGBTQ+ community in Malaysia;
c. Mr Parvar confirmed the respondent’s position that internal relocation to Kuala Lumpur (KL) is both safe and reasonable. The appellant disputes that and argues that the risk set out at (a) is a country-wide risk for gay men in Malaysia or, in the alternative, that relocation there is unreasonable;
d. whether the appellant is at real risk of a breach of his ECHR Article 3 Rights (degrading treatment) and/or;
e. whether the respondent’s decision represents a breach of the appellant’s ECHR Article 8 rights within the meaning of Immigration Rules (very significant obstacles to reintegration);
f. whether the appellant’s private life is of sufficient weight that his removal from the UK is a disproportionate breach of his Article 8 rights.
5. In so far as the preserved findings are concerned, in addition to those identified above, the judge made certain other findings which are not infected by the errors of law. She summarised those at [29] as follows:
“29.1 has been in same-sex relationships with individuals known as G and K.K in Malaysia;
29.2 has had same-sex relations with B.D-B. and his partner in the United Kingdom;
29.3 Is not currently in any relationship in the United Kingdom and is leading a relatively quiet life here;
29.4 is living with his cousin in the United Kingdom and has no other family members here;
29.5 has worked and earned a living in Malaysia; and
29.6 Is not suffering from any physical ailments or diagnosed mental health problems.”
6. The judge made a further finding at [56] which is not infected by legal error and which Mr Parvar accepted should be preserved. That reads as follows:
“Concerning the appellant’s own account about his life in Malaysia, I accept, to the lower standard of proof, that the appellant has engaged in same-sex relationships whilst living in Malaysia. I accept that the appellant had two brief relationships in Malaysia whilst working at a hair salon (with G and K.K.), and that he was not living as an openly gay man for fear of retaliation.”
7. Although Mr Gilbert accepted the appellant has no diagnosed mental health issues, he relied on the expert opinion of Professor Katona in his report of 7 August 2023 that the appellant had some cognitive difficulties. There was no direct challenge to this part of Professor Katona’s report. In any event, in light of the preserved findings, Mr Gilbert did not propose to call the appellant to give evidence. The appellant had the benefit of a Cantonese interpreter who he confirmed he understood. It was agreed that at appropriate moments during my dialogue with the representatives and during submissions I would summarise in simple form what had been said so that could be interpreted for the appellant. That is what I did.
8. I heard evidence from two witnesses on the narrow issue of the way in which the appellant presents, by which I mean whether he presents as an overtly gay man. The first was B.D-B who gave evidence over the CVP. The second was the appellant’s cousin who attended the hearing and gave evidence with the assistance of the interpreter. Mr Parvar raised objection to me allowing that evidence to be taken from B.D-B as he had not included such evidence in his witness statement. However, I allowed the questions to be put in a non-leading way on the basis that it was required to address matters Mr Parvar raised in the skeleton argument. The other witness was the appellant’s cousin. She had dealt with the issue in her witness statement and she was asked a few supplementary questions. Mr Parvar cross-examined them both, not just on the issue of the appellant’s presentation but also on their general credibility and, as far as the 2nd witness was concerned, also about the delay in the appellant claiming asylum (2018). I shall return to that later. I heard detailed submissions from both representatives and at the end of the hearing I reserved my decision.
The Legal Framework
9. This is the remaking of an asylum claim in the context of the appellant’s fears being his treatment on return to Malaysia as a gay man. His claim was made prior to the implementation of the Nationality and Borders Act 2022 so it is for the appellant to show a well-founded fear of persecution for a Convention reason and he has to do so applying a single standard of proof, namely a reasonable degree of likelihood. If there is a well-founded fear of persecution for that reason in the appellant’s home area, given it is accepted there would not be sufficient protection available, I have to consider the reasonableness of the appellant internally relocating to KL as the respondent suggests. As confirmed in ASJ (Somalia) v Secretary of State for the Home Department [2025] EWCA Civ 282 the task for the tribunal when considering internal relocation is “having considered all the circumstances, it must decide whether it would be unduly harsh, and so unreasonable, for the person to relocate internally within his country of origin” [28].
10. The decision of the Supreme Court in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31 applies. The questions to be asked and answered are well-known and set out at [82]. In brief they are whether or not the appellant is gay; whether he would be liable to persecution in his country of origin if he returned as an openly gay man; what he would do if he were returned to that country; if there was a real risk of persecution and, if he were to live openly, it follows that his fears would be well-founded, even if he could avoid the risk by living "discreetly"; if he would in fact live discreetly, why would he do so; if that would be to avoid societal pressures or through personal choice, such reasons are not covered by the Convention and he would not be a refugee; however, if he did so through fear of persecution, he should be admitted to asylum to allow him to live freely and openly as a gay man without fear of persecution.
11. There are no Country Guidance cases on Malaysia. Therefore my assessment of the country conditions and the risk on return will be founded on the background material with which I have been provided and particularly those parts to which I have been specifically taken.
Assessment of the oral evidence
12. Both the witnesses had given evidence to the FtT. Whilst the judge raised an observation about some inconsistent evidence about B.D-B’s last contact with the appellant she accepted the evidence as to their sexual encounters [54]. She found the appellant’s cousin credible [55].
13. Mr Parvar challenged the credibility of both witnesses but particularly B.D-B, primarily on the basis that he had not included within his witness statement any evidence about how the appellant presents. Mr Parvar submitted that the B.D-B’s explanation of why not did not stand up to scrutiny. I did not find this to be a basis to doubt the witness’s credibility. As mentioned above, this was evidence which I allowed to be given in order to deal with factors raised in the respondent’s skeleton argument and as it went to risk on return. At the FtT hearing the respondent disputed the appellant was gay so it is understandable that B.D-B’s evidence then focused on his sexual encounters with the appellant which was much more probative of the appellant’s sexuality.
14. Mr Parvar challenged the appellant’s cousin’s credibility on the grounds that she was unable to sufficiently particularise in what way she thought the appellant was gay prior to knowing he was.
15. I had no reason to doubt the credibility of the evidence either witness gave. On the issue of the appellant’s presentation, the appellant’s cousin has consistently stated she knew the appellant was gay prior to him disclosing that to her. She explained that her views were formed from the way the appellant presented as soft, easy to cry and the way in which he walked and talked. B.D-B said he just ‘knew’ and that the appellant is very ‘feminine’ although he also accepted not everyone would necessarily realise he was gay. I do not place any weight on the criticism of how the appellant’s cousin articulated her suspicions. I find her choice of words to be broadly consistent with the evidence B.D-B gave. Neither of the witnesses gave evidence that the appellant wore clothes that might particularly mark him out as part of the LGBTQ+ community but I am satisfied the appellant has some characteristics which may be broadly described as ‘effeminate’ and were sufficient to arouse suspicion in both B.D-B and the appellant’s cousin that he may be gay and therefore, it is reasonably likely it may also do so in others.
16. In his submissions, Mr Parvar relied on the evidence the appellant’s cousin gave about why the appellant did not claim asylum until 2018, in conjunction with the accepted immigration history, to submit that the appellant’s delay in claiming asylum or otherwise regulating his immigration status undermined his claim to be genuinely fearful of returning to Malaysia as a gay man. He submitted the appellant and his cousin were inconsistent in their explanation for the delay.
17. Of course in the original refusal, the respondent relied on this delay to undermine his evidence that the appellant is gay. Nevertheless, the judge found him to be gay. There is no adverse credibility finding about him. She also found the appellant was living discreetly in Malaysia through fear of retaliation, a finding which the respondent accepts (it is not infected by the error of law). In the evidence before the judge, the appellant said he had conducted his relationship discreetly, but in any event his mother started to receive threats about him from neighbours who said he is a ‘weirdo’ and that they would report him to the authorities (witness statement para. 33).
18. I am satisfied, based on the judge’s findings, that the appellant would live discreetly on return as he did before he left. There is no good reason why this would not be so. I am satisfied he would do so for fear of retaliation as the judge found. Whilst the judge did not particularise the retaliation the appellant feared, based on the evidence before her, it is plain that the appellant feared retaliation from locals who had threatened to report him, so implicitly his fear was also of the authorities. He said as much plainly at para. 49 of his witness statement.
19. It follows that I am satisfied the appellant has a genuine subjective fear of living as an openly gay man in Malaysia.
Assessment of the Background Country Information
A summary of the parties’ position
20. Both parties broadly rely on the evidence contained within the 2024 CPIN, both in the content set out therein and the underlying source material. Unless otherwise stated, references in this section are to the 2024 CPIN.
21. The respondent’s policy position is that prosecutions under the Penal Code are rare [3.1.2]/[3.1.10] and whilst there is some official discrimination, treatment by state actors is not sufficiently serious by its nature or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution [3.1.1]/[3.3.1]. However, the respondent notes that the risk for Muslim LGBI persons accused of same-sex sexual acts and who are likely to be prosecuted under Sharia law [3.1.3]; for openly trans persons [3.2.1] particularly Muslims and for those forced to undergo conversion therapy practices is elevated and likely to amount to persecution [3.1.4]. In other words, notwithstanding paragraph [8.2.1] in which the respondent recognised it is sometimes difficult to consider the position of certain groups within the LGBTQ+ community as many of the sources group them together, the respondent accepts there is a sufficient difference in the treatment of people in the aforementioned categories from someone like the appellant, such that one is reasonably likely to face treatment amounting to persecution and the other is not (unless they are able to show otherwise).
22. In line with the policy position, Mr Parvar reiterated that actual prosecutions under the Penal Code (as opposed to the religious laws) were not common place. He further submitted that the appellant relies on material in relation to categories of people which do not apply to him such as Muslims and transgender persons to whom there is a more enhanced risk. The appellant on the other hand, can live safely as an openly gay man in his home area or, if needs be in KL and it would be reasonable or not unduly harsh to expect him to do so. In particular Mr Parvar relied upon paragraph [5.1.3-5.1.4] of the policy section of the CPIN which says that KL:
“5.1.3 …is considered more tolerant of LGBTI persons. Densely populated KL is more ethnically and religiously diverse that other areas with a high proportion of younger people and those of working age, with many different nationalities living and working there
5.1.4 Sources indicate KL has better access to support services and community groups for LGBTI people compared to other states. This includes services for gay men and trans women affected by HIV, shelters for trans women, mental health support, and online and offline community support, provided by various NGOs. There is an LGBTI community in existence organising LGBTI marches and rallies and there are LGBTI friendly areas, nightclubs and bars ”.
23. Mr Gilbert submitted that the risk to all those in the LGBTQ+ community exists throughout Malaysia, but the risk is higher for certain members of that community and for all in certain parts of Malaysia. He further submits that the climate fostered by the Malaysian state against those in the LGBTQ+ community is generally hostile and that taken with the Penal code, the actively enforced Sharia laws and the widespread societal attitudes creates an overall climate which precludes the appellant living safely as an openly gay man in a way which is free from the type of treatment considered in HJ (Iran). He stressed that this is the case throughout Malaysia, therefore there is no safe internal relocation alternative.
24. In support of this submission, Mr Gilbert relied extensively on the following part of the Australian Department of Foreign Affairs and Trade (“DFAT”) report dated 24 June 2024. I have italicised the particular section on which Mr Gilbert relied:
“3.147 The level and frequency of discrimination faced by members of the LGBTQIA+ community differs according to their sexual orientation and gender identity, socio-economic status, religion, geographic location, and degree of openness regarding their sexual orientation and gender identity. Well-educated urban LGBTQIA+ individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles than poorer individuals in rural areas. In-country sources reported that people in Kuala Lumpur were generally more accepting of LGBTQIA+ people than in East Coast peninsular Malaysia or Sarawak and Sabah. In-country sources also told DFAT that most transgender individuals from Sarawak and Sabah relocated to Kuala Lumpur for employment and to escape discrimination.
3.148 DFAT assesses that members of the LGBTQIA+ people face a high risk of official discrimination and a moderate risk of societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities. DFAT also assess that LGBTQIA+ people face a moderate risk of familial and/or societal violence. LGBTQIA+ people who are also Malay/Muslim, poor, transgender, and/or live in rural areas face a high risk of official and societal harassment, discrimination and familial and/or societal violence. LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.”
Evaluation of the country evidence in the 2024 CPIN
25. There were certain features of country conditions in Malaysia about which there was little dispute. The Constitution does not specifically prohibit discrimination on the basis of sexual orientation, gender identity or expression [7.1.1]. There is no legal recognition of same-sex relationships [7.4.1]. Whilst the Malaysian Penal Code does not specifically refer to sexuality or same-sex sexual acts it deals with ‘unnatural offences’ that go against the ‘order of nature’ and that includes acts likely to be infringed by consensual same sex relationships between men [7.1.4]-[7.1.5]. The Office of the United Nations High Commissioner for Human Rights says “the Penal Code criminalised same sex-relations, imposing a sentence of 20 years in prison and mandatory whipping” [7.1.6]. Sharia law applies to Muslims in Malaysia [7.2.1] and prosecutions against same-sex relations are brought thereunder. The respondent accepts that the state is able but not willing to offer effective protection for the LGBTQ+ community in Malaysia [4.1.1]. A decision of the Malaysian Federal Court in 2021 struck down the Sharia law in Selangor which criminalised same-sex relationships as unconstitutional, on the basis that such legislation was reserved to the Malaysian Parliament [7.3]. That ruling did not impact the federal legislation in the Penal Code. There is little data on prosecutions of the LGBTQ+ community and the data that appears to be available is limited in terms of detail [8.5].
26. In so far as government rhetoric is concerned, section [8.1] contains mixed reports on the attitude of the state to towards the LGBTQ+ community, even from the Prime Minster. In 2023, whilst stating excessive action or harassment against the LGBTQ+ community would not be condoned, he also said that “Malaysia will never recognise LGBT rights” and on another occasion he was reported to have rejected the idea that LGBT Malaysians would be protected and recognised under his government. Supportive views have been espoused by some state officials [8.1.5] but others, often in the context of religious laws, have referred to gay ‘rehabilitation’ [8.1.6] and actively calling for ‘conversion therapy’ for Muslim LGBTQ+ citizens [8.6.1]. It is reported that in 2021 at least 1,733 LGBTQ+ people had been sent to such camps [8.6.10]. Another report refers to ‘camps’ and ‘programs’ for teenage boys with effeminate behaviour [8.6.2]/[8.6.4].
27. The government’s general attitude of hostility towards the LGBTQ+ community manifests in government guidelines prohibiting pro-LGBTQ+ expression in entertainment activities in higher-education facilities [8.1.10], its prohibition in state-owned media [8.7.2] and threatening to or actually shutting down events when pro-LGBTQ+ activity or speech arise [11.3.8-11.3.9]. The evidence appears less clear about the extent to which there is censorship or restriction on the freedom of expression in the non-state sector although the thrust of the background evidence appears to show that the overall hostility of the environment results in self-censorship or censorship under the cloak of anonymity [8.7.1/8.7.6]. Amongst those that have posted on-line, Freedom House noted that 90% reported being affected by online harassment [9.2.8]. By contrast, a report by Outright International noted the importance of online forums and social media platforms as crucial to connecting the community [11.3.2/11.3.4]. The totality of the evidence in the 2024 CPIN as to NGO or other support for the LGBTQ+ community suggests that the government’s overall attitude hampers the efficacy of such advocacy through measures such as inconsistent registering of NGOs [11.1.4], although some do operate. According the 2021 DFAT report, they do so largely unhindered [11.2.2] although governmental opposition reduces their efficacy [11.2.3]. Following the cancellation of a Pride march due to religious complaints in 2017, there have been no Pride events in Malaysia [11.3.1]. However, in 2023 CNN reported on a Women’s Day March which called for greater LGBTQ+ rights [11.3.7]. In the 2021 Arrow report, it was noted there has been an increase in the participation of LGBTQ+ human rights groups [11.3.5].
28. Insofar as societal treatment of the LGBTQ+ community is concerned, Malaysia is a religiously conservative society and issues of gender and sex are generally regarded as taboo [9.1.1]/[9.1.10]. In its report of 10 August 2022, Human Rights Watch noted that public discourse on the issue is ‘warped’ by “the lack of [Malaysia’s] government response to public pressure to change sexual orientation or gender identity and hate speech against LGBT people” [9.1.3]. It is against this backdrop that there are also reports of members of the LGBTQ+ community hiding their identity for fear of discrimination and violence although less so amongst those with higher-economic status [9.2.6] (see [24] above). The 2024 CPIN noted difficulties in ascertaining the extent of discrimination of violence and discrimination as between the different groups comprising the LGBTQ+ community [9.2.1] and also noted that the 2021 Arrow report was not able to find information about violence in relation to queer men in KL [9.2.2] although it did note violence from family members in Perak (the appellant’s home area) [9.2.4]. In the employment context, although there is a prohibition of discrimination in employment under the Constitution [10.3.1], it nevertheless manifests in different ways according to the individual group within the LGBTQ+ community. For gay men, it is more pronounced for those with HIV, but the Arrow report of 26 January 2021 also noted discrimination resulting in members of the community hiding their identity and conforming to sexual norms or risk facing disciplinary action [10.3.2]. Another source reported an increase of sex work amongst the LGBTQ+ community due to the denial of mainstream opportunities although “39/51 respondent’s migrated from their hometown to KL and Selangor to seek employment opportunities” [10.3.4]. There is also some evidence of locations in KL where gay Malaysians can meet discreetly [11.3.3] and where there is more activism and support [11.3.4]. Compare that to Perak where the general environment stigmatises LGBTQ+ persons and is a barrier to in-person connectivity [11.3.4].
29. The 2024 CPIN notes that KL has a population of about 8.8 million people of which 1.9 are in the city itself [12.1.1]. Muslims form the majority of the population [12.1.4]. The size of the LGBTQ+ population is unknown [13.1.5].
30. The extract from the DFAT report on which Mr Gilbert relied (see [24] above) is found under the section of the DFAT report dealing with transgender people although it appears clear from the terminology used therein that in places it is talking about the wider LGBTQ+ community. The section of the report dealing with gay men refers to some discrimination and harassment in employment, particularly for those who are visibly effeminate and for those with HIV; plus adverse treatment of gay students and incidents of people being stopped by the police and having their phones checked for LGBTQ+ messages or apps [3.135]. Furthermore, the report noted a serious problem of gay men facing blackmail and extortion from police officers and a lack of protection for domestic violence within same-sex couples [3.136].
31. The only part of the 2024 CPIN under the heading “treatment of gay, bisexual men and intersex persons” which does not refer to actions other than solely by the religious authorities or pursuant to Sharia legislation is contained within paragraph [8.2.7] which refers to occasional joint operations between the police and religious authorities such an in 2018 when a gay bar in KL was raided. However, according to the underlying source (Human Rights Watch report of 10 August 2022) the arrests of 22 men were undertaken by the religious enforcement authorities and the sentences were “Islamic counselling”. At paragraph [8.2.8] the 2024 CPIN refers to evidence from the USSD 2023 report that the police at times condoned violence against LGBTQ+ persons which it described as common, including in custody, although further details were not given.
Conclusions on Background Country Information
32. There are some clear examples of where Muslim members of the LGBTQ+ community and transpersons may be more clearly at risk of persecutory treatment in Malaysia. The task however, is to decide if a person with the appellant’s profile, namely of a non-Muslim gay man with some effeminate characteristics, would suffer treatment which is sufficient to amount to persecution if he lived as an openly gay man in Malaysia. I remind myself that this is a lower standard of proof and is in place to ensure the principle of protection in the Convention is not undermined.
33. A useful exposition of what amounts to persecution is set out at [12]-[15] of HJ (Iran), in which Lord Hope said:
“12. The Convention does not define "persecution". But it has been recognised that it is a strong word: Sepet and Bulbul v Secretary of State for the Home Department [2003] UKHL 15, [2003] 1 WLR 856, para 7, per Lord Bingham. Referring to the dictionary definitions which accord with common usage, Lord Bingham said that it indicates the infliction of death, torture or penalties for adherence to a belief or opinion, with a view to the repression or extirpation of it. Article 9(1)(a) of the EC Council Directive 2004/83/EC on minimum standards for the qualification and status of third country nationals or stateless persons as refugees ("the Qualification Directive") states that acts of persecution must
"(a) be sufficiently serious by their nature or repetition as to constitute a severe violation of basic human rights … or (b) be an accumulation of various measures, including violations of human rights which is sufficiently severe as to affect an individual in a similar manner as mentioned in (a)."
In Appellant S395/2002 v Minister for Immigration and Multicultural Affairs (2003) 216 CLR 473, para 40, McHugh and Kirby JJ said:
"Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it."
13. To constitute persecution for the purposes of the Convention the harm must be state sponsored or state condoned. Family or social disapproval in which the state has no part lies outside its protection. As Professor J C Hathaway in The Law of Refugee Status (1991), p 112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community." The Convention provides surrogate protection, which is activated only upon the failure of state protection. The failure of state protection is central to the whole system: Horvath v Secretary of State for the Home Department [2001] 1 AC 489, 495. The question is whether the home state is unable or unwilling to discharge its duty to establish and operate a system for the protection against persecution of its own nationals.
14. The reference in the preamble to the Universal Declaration of Human Rights of 1948 shows that counteracting discrimination was a fundamental purpose of the Convention. Article 2 states:
"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."
Lord Steyn emphasised this point in Islam v Secretary of State for the Home Department; R v Immigration Appeal Tribunal, Ex p Shah [1999] 2 AC 629, 639. He also drew attention to the first preamble to the Declaration, which proclaimed the inherent dignity and the equal and inalienable rights of all members of the human family. No mention is made of sexual orientation in the preamble or any of its articles, nor is sexual orientation mentioned in article 1A(2) of the Convention. But coupled with an increasing recognition of the rights of gay people since the early 1960s has come an appreciation of the fundamental importance of their not being discriminated against in any respect that affects their core identity as homosexuals. They are as much entitled to freedom of association with others of the same sexual orientation, and to freedom of self-expression in matters that affect their sexuality, as people who are straight.
15. The guarantees in the Universal Declaration are fundamental to a proper understanding of the Convention. But the Convention itself has, as the references in para 12 show, a more limited purpose. It is not enough that members of a particular social group are being discriminated against. The contracting states did not undertake to protect them against discrimination judged according to the standards in their own countries. Persecution apart, the Convention was not directed to reforming the level of rights prevailing in the country of origin. Its purpose is to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge. It does not guarantee universal human rights. So the conditions that prevail in the country in which asylum is sought have no part to play, as matter of legal obligation binding on all states parties to the Convention, in deciding whether the applicant is entitled to seek asylum in that country: Januzi v Secretary of State for the Home Department [2006] UKHL 5, [2006] 2 AC 426, paras 16, 46. As Laws LJ said in Amare v Secretary of State for the Home Department [2005] EWCA Civ 1600, [2006] Imm AR 217 para 31:
"The Convention is not there to safeguard or protect potentially affected persons from having to live in regimes where pluralist liberal values are less respected, even much less respected, than they are here. It is there to secure international protection to the extent agreed by the contracting states."”
34. This was reiterated at [63] of MI (Pakistan) and Anor v Secretary of State for the Home Department [2014] EWCA Civ 826 when Gloster LJ said:
“the concept of persecution for the purposes of the Geneva Convention (and indeed the Directive) requires that the past or apprehended harm to the asylum seeker must attain a substantial level of seriousness. Similar considerations apply to the demonstration of serious harm for the purposes of a humanitarian protection claim or an Article 3 claim. Family or social disapproval in which the state has no part lies outside its protection. Discrimination against members of a particular social group in the country of origin is not enough, even though such discrimination might be contrary to the standards of human rights prevailing in the state in which asylum is sought. As Lord Hope said in HJ (Iran), in the passage quoted above, the purpose of the Geneva Convention is:
"to provide the protection that is not available in the country of nationality where there is a well-founded fear of persecution, not to guarantee to asylum-seekers when they are returned all the freedoms that are available in the country where they seek refuge."”
35. Applying this to the background evidence to which I have referred, in my judgement, it is clear that the situation for the LGBTQ+ community in general in Malaysia is not limited to societal disapproval and discrimination. The Malaysian state fosters and shapes that discourse through not just its federal and religious laws criminalising same sex acts but other positive acts such as the prohibition of LGBTQ+ content in state media and higher education facilities. The Government rhetoric about conversion therapy is not just rhetoric given the incidences of people actually being sent to such camps. There is undoubtedly a degree to which there is rhetoric which is not necessarily acted upon but there is little, if any evidence, of any ministerial or government statement in support of LGBTQ+ rights which is not caveated by some reference to the contrary. Whilst prosecutions under the Penal Code may be rare, the facility exists for such prosecutions to take place. That provides the backdrop and the climate for the actions of the authorities, the police and others and which underpins and bolsters discriminatory acts in respect of which members of the LGBTQ+ community lack legal protection.
36. In this context, I find it reasonably likely that if the appellant lived as an openly gay man in his home area, he will face not just discrimination but harassment and possibly violence from society and may also encounter the police either through reports from locals or through him coming directly to their attention from his activity or his presentation as a gay man with some effeminate characteristics. I am satisfied that, as a result of the climate surrounding same sex relationships fostered and promoted by the government, the lack of legal protection, the criminalisation of certain activities and the pronouncements about gay conversion/rehabilitation, the appellant would live discreetly on return to his home area as he did prior to leaving Malaysia. I am satisfied that his decision to live discreetly would be informed in material part by fear of persecution which is well-founded on the totality of the evidence before me and in respect of which it is accepted there is insufficient protection.
37. That leaves the assessment of whether the appellant could internally relocate to KL. In arriving at that decision I need not only to consider whether it would be safe for him to do so but also whether it would be reasonable. I do not find the policy guidance on which Mr Parvar relied at [5.1.3-5.1.4] to be made out in terms of the overall evidence contained within the Country Information section of the CPIN. Whilst I accept that the situation in KL is not quite as bad as elsewhere in Malaysia and there are parts of KL where there is more tolerance, I note the evidence that even in those parts, LGBTQ+ people still need to act discreetly (see [28] above). The incidents of more open behaviour are minimal in the context of the balance of the evidence which points to societal and state hostility in all walks of life even in KL. Given that the state’s unwillingness to provide sufficient protection extends throughout Malaysia and given the reinforcement of those views in the Penal Code, the lack of legal protection and via government rhetoric, I do not find that relocating to KL is necessarily safer for the appellant so it is still reasonably likely he will act discreetly to avoid hostility, discrimination and coming to the attention of the authorities. In the circumstances, I find that relocation to KL is not an unsafe not a safe alternative for the appellant, in the alternative, and in all the circumstances, I do not find it reasonable for him to relocate there, especially when considering the what Lord Rodgers said at [77] of HJ (Iran) as follows:
“77. At the most basic level, if a male applicant were to live discreetly, he would in practice have to avoid any open expression of affection for another man which went beyond what would be acceptable behaviour on the part of a straight man. He would have to be cautious about the friendships he formed, the circle of friends in which he moved, the places where he socialised. He would have constantly to restrain himself in an area of life where powerful emotions and physical attraction are involved and a straight man could be spontaneous, impulsive even. Not only would he not be able to indulge openly in the mild flirtations which are an enjoyable part of heterosexual life, but he would have to think twice before revealing that he was attracted to another man. Similarly, the small tokens and gestures of affection which are taken for granted between men and women could well be dangerous. In short, his potential for finding happiness in some sexual relationship would be profoundly affected. It is objectionable to assume that any gay man can be supposed to find even these restrictions on his life and happiness reasonably tolerable.”
38. Given the evidence about the situation for gay men in Malaysia, including in KL, I am satisfied this is precisely how the appellant would have to live his life if he were to return.
39. Returning to the HJ (Iran) questions and applying a combination of the preserved and my findings: the appellant is gay; if he lived openly as a gay man in his home area he would face a real risk of treatment amounting to persecution; he would live discreetly on return in material part to avoid the risk of persecution. If he relocated to KL he is reasonably likely to face the same circumstances and choose to live discreetly for the same reasons, but in the alternative it is not reasonable to expect him to do this. I also find these factors to amount to ‘very significant obstacles’ to his reintegration.
40. It follows that I am satisfied the appellant is a refugee and is entitled to Article 3 protection. Accordingly humanitarian protection does not apply. To the extent I need deal with it, I also find the appellant able to meet paragraph 266ADE(1)(vi) of the Rules. Given his length of residence in the UK, he has an established private life here characterised, inter alia, by his relationship with his cousins and his friends which would be disrupted if he had to leave. Accordingly Article 8 is engaged. Given he is able to meet the requirements of the Rules, the public interest does not require his removal (TZ (Pakistan) v Secretary of State for the Home Department [2018] EWCA Civ 1109 applies) and the disruption to the appellant’s private life renders the respondent’s decision disproportionate.
Notice of Decision
The appeal is allowed on asylum, Articles 3 and 8 grounds.

SJ Rastogi
Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 May 2025
Annex 1 – Error of Law decision

1. The appellant appeals against the decision of First-tier Tribunal Judge Manyarara (“the Judge”) dated 23 July 2024 (“the Decision”) dismissing the appellant’s appeal against the respondent’s refusal of his protection and human rights claims.

2. The basis of the appellant’s claim is that he fears persecution as a gay man on return to Malaysia. In the refusal letter of 21 October 2022 the respondent did not accept that he was gay. However, the judge found as fact that he was [59] but she did not find he had a well-founded fear of persecution on the basis that he could internally relocate [79]. The judge arrived at that conclusion having taking into account evidence from the respondent’s CPIN, Sexual orientation and gender identity or expression, Malaysia, version 2.0, dated July 2024 (‘the 2024 CPIN’) and the expert evidence of Professor Katona.

3. The grounds of appeal contend that the judge erred in relying on the 2024 CPIN as it was not before her in evidence and therefore the appellant was not able to make submissions upon it. Accordingly there was procedural unfairness. The grounds also contend the judge failed to have regard to the correct CPIN which was before her in evidence, and erred in failing to adequately reason why internal relocation was reasonable in light of Professor Katona’s report and the appellant’s characteristics. Permission was granted on all grounds.

4. By way of a Rule 24 Notice dated 12 November 2024 the respondent conceded that the judge had fallen into error by relying on the 2024 CPIN rather than the one before her in evidence and erred in her assessment of Professor Katona’s evidence. The respondent conceded the appeal should be allowed and the decision set aside. The respondent did not seek to challenge the judge’s finding that the appellant was gay [59]. The respondent’s view was that the appeal could be remitted to the First-tier Tribunal.

5. When considering where the remaking of an appeal should take place, consideration is to be given to the Court of Appeal’s decision in AEB v SSHD [2022] EWCA Civ 1512, the decision in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and para. 7.2 of the Senior President’s Practice Statements. Regard is also to be had to the extent of the preserved findings.

6. With that in mind, I note both the respondent’s concession at [4] above and the fact that the respondent accepts that, if found to be gay, the appellant would be part of a Particular Social Group in Malaysia (see [45] of the Decision). In those circumstances, I find there are sufficient preserved facts that, if the Decision is set aside, the appropriate course is for the appeal to be retained for re-making in the Upper Tribunal pursuant to section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

7. Unless the appellant notifies the Upper Tribunal within 7 days of the issue of this decision, in accordance with the respondent’s concession, I find there to be an error of law in the Decision. I set aside the decision in its entirety save the preserved finding that the appellant is gay together with the finding that he is a member of a Particular Social Group. The remaking of the appeal is to take place in the Upper Tribunal.