UI-2024-005215

• Status of case: Unreported
• Hearing date: 18 Dec 2025
• Promulgation date: 12 Jan 2026
• Publication date: 27 Jan 2026
• Last updated on: 27 Jan 2026

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005215

First-tier Tribunal No:
PA/54134/2023
LP/05286/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 12th January 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

GCC
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Gilbert, instructed by Milestone Solicitors
For the Respondent: Ms L. Clewley, Senior Home Office Presenting officer

Heard at Field House on 18 December 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 her. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS

1. This decision is the remaking, under section 12 (2) (b) (ii) of the Tribunals, Courts and Enforcement Act 2007, of a First-tier Tribunal (“FTT”) decision dated 9 September 2024 but set aside by the Upper Tribunal in a decision promulgated on 15 August 2025.
2. The FTT made an anonymity order in this appeal because the appellant has made a claim for international protection. I consider that it is appropriate for that order to continue because the public interest in the UK’s compliance with its international obligations and in the confidentiality of the asylum process outweighs any public interest in the disclosure of precise details of this appellant’s identity.
3. The background to this appeal is set out in the Upper Tribunal’s decision of 15 August 2025, which is included as an annex below. In summary, it accepted that the appellant is a lesbian and a citizen of Malaysia from a Buddhist, ethnically Chinese background and that the appellant’s claim engages the Refugee Convention because lesbians are a particular social group in Malaysia.
4. It is also accepted that LGBTQ+ people face some degree of official discrimination and mistreatment by state and non-state actors. Where the parties disagree is about the pervasiveness and seriousness of this mistreatment, and the degree to which it extends to women of the appellant’s profile.
5. It is helpful to remind ourselves of what is potentially at stake in claims for international protection based on sexual or gender identity. In the leading case of HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31, Lord Rodgers (with whom three of their lordships agreed), described how a gay man would need to live in Iran in order to avoid persecution.
“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.
“78. It would be wrong, however, to limit the areas of behaviour that must be protected to the kinds of matters which I have just described – essentially, those which will enable the applicant to attract sexual partners and establish and maintain relationships with them in the same way as happens between persons who are straight. [….] what is protected is the applicant’s right to live freely and openly as a gay man. […] gay men are to be as free as their straight equivalents in the society concerned to live their lives in the way that is natural to them as gay men, without the fear of persecution.”
6. Thus, although the evidence appellant relies in part on evidence that LGBTQ+ people have been punished for activities that could, taken in isolation, be dismissed as not essential to the enjoyment of fundamental human rights – attending a gay party, for example, or wearing Pride symbols – it is the appellant’s case that as a combination of threats from state and non-state actors she would be unable to form family relationships or live a normal life without fear of serious harm.
7. As a preliminary matter, I note that the country evidence before me uses a range of different terms for individuals whose sexual or gender identity or expression do not conform to the expectations of the majority in Malaysia. When quoting from a particular source, I will use the term used by that source. Otherwise, I will use the term “LGBTQ+”.

The parties’ positions
8. The FTT’s decision has been set aside in its entirety and neither side has presented further evidence, such that the parties’ positions are as they were before the FTT.
9. The appellant says that she realised she was a lesbian when she was 25 years old, when she fell in love with her first female partner, whom I will call “P” for partner. P was also Malaysian, but they met in 2008 when they were both studying in the UK. The appellant and P lived openly as a couple in the UK, and they also told a few close family member about their relationship. The appellant’s mother and her sisters eventually accepted the relationship, but her father and her brother did not and they are no longer speaking to her.
10. The appellant’s relationship with P lasted for four years in the UK, and in September 2012 they both returned to Malaysia. They did not cohabit or otherwise live openly as a couple there. The appellant said at her asylum interview that she hid her sexual identity from her colleagues and her wider family in Malaysia and was “always worried about being arrested.” When she bought flowers for P, people would look at them strangely, and on one occasion when they held hands briefly at a mall, members of the public demanded to see their identity cards to prove that they were sisters and threatened to call the police. After that, the appellant said that she felt “unhappy for a long while” and that she and P did not “dare to hold hands in public [or] even put our hands on each [other’s] shoulder.” In April 2013, P broke off the relationship, and the appellant said in her oral evidence before me that this was in part due to the strain of keeping the relationship hidden.
11. By the time of her asylum claim, the appellant said she had been in two other serious relationships with women, one with a Chinese woman (“P2”) whom she met in the UK after re-entering as a visitor in 2013, and one with a Malaysian woman (“P3”) she had met in primary school but then reconnected with in Malaysia in 2019, after returning there for family reasons. As with P, she described the relationship with P2 as “normal” and “open”. By contrast, the relation with P3 in Malaysia had to be kept hidden, because it was “dangerous”, and this eventually contributed to the couple separating. She said that since returning to the UK for the final time in 2019, she had openly socialised in the LGBTQ+ community.
12. In the refusal decision, the respondent found that the appellant’s conduct engaged sections 8(2)(c) and 8(4) of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and that this had damaged her credibility. However, the respondent did not reject any aspects of her account and specifically accepted that she was a lesbian and had had female partners in Malaysia and the UK. The respondent found, however, that by the appellant’s own account, she had not faced any problems in Malaysia because of her sexual identity in the past. Nor would she be required to be “discreet” about it on return because the country evidence showed that “people in Malaysia are open about their sexuality”. There would be no significant obstacles to the appellant’s reintegration in Malaysia because she was educated, had work experience and had lived the majority of her life there.
13. Because the appellant’s appeal skeleton argument and evidence was filed late, the respondent was unable to conduct a meaningful review. The appeal therefore came before me with the appellant’s credibility having been impugned in general terms, but without any part of her account having been rejected. Nor had the respondent directly addressed the appellant’s claim that she had kept her sexual identity hidden in Malaysia out of a genuine subjective fear.

The hearing
14. At the hearing before me on 18 December 2025, all parties had sight of:
(i) The appellant’s skeleton argument, dated 10 December 2024; and
(ii) The appellant’s bundle, filed on 21 July 2025, in advance of the error of law hearing of 1 August 2025.
15. There was no updating written evidence from either party.
The issues before me
16. As agreed at the hearing before me, it is accepted that the appellant was a lesbian and that the issues for me to determine are:
(i) Would the appellant’s removal to Malaysia violate the UK’s obligations under the Refugee Convention because she would face a real risk of persecution there for reasons of her sexual identity?
(ii) Would the appellant’s removal to Malaysia be inconsistent with section 6 of the Human Rights Act 1998 because she would face a real risk of being subjected to inhuman and degrading treatment there?
(iii) Is the appellant eligible for leave to remain in the UK under Para. PL 5.1(b) of the Immigration Rules because there would be very significant obstacles to her reintegration in Malaysia?
(iv) Would the appellant’s removal to Malaysia be inconsistent with section 6 of the Human Rights Act 1998 because it would be a disproportionate interference with her article 8 rights?
17. I then confirmed the parties’ respective positions with regard to the risk (if any) to lesbians in Malaysia. The respondent’s position is set out in the assessment section of her CPIN, Malaysia: Sexual orientation and gender identity or expression, Version 2.0 (July 2024). As agreed at the hearing before me, this can be fairly summarised as follows. In terms of risk from the state:
(i) LGBI persons face official discrimination from the state;
(ii) The penal code criminalises “carnal intercourse against the order of nature”, which is interpreted as including same-sex sexual acts. As Ms Clewley pointed out, this is defined as requiring penetration by a penis and therefore would not apply to the appellant’s relationships with women in Malaysia. The criminal code also prohibits acts of gross indecency, which could in theory apply to the appellant. This is punishable by up to two years’ imprisonment. However, the respondent’s sources indicate that prosecutions are rare;
(iii) Sharia laws are used to punish Muslim men and women accused of same-sex sexual activity, but non-Muslims are not at risk of punishment under sharia law;
(iv) Conversion therapy aimed at changing non-conforming sexual identity is promoted by the government, particularly in relation to Muslims;
(v) “Protests and rallies are generally able to take place, although organisers can be subject to harassment and police investigation.”;
(vi) In Kuala Lumpur (KL), LGBTI clubs are generally able to operate without state interference; and
(vii) Civil society organisations advocating for LGBTI persons exist.
18. In terms of risks of harm from society, the respondent’s assessment is as follows:
(i) Malaysia is a culturally and religiously conservative country and in general there is a negative view of same-sex relationships;
(ii) LGBI persons face discrimination, stigma, threats, and violence, including sexual violence, from family members;
(iii) It is difficult to ascertain the scale and frequency of societal violence against LGBI persons, as there are no official statistics; for the period of 2018-2020, the respondent’s sources revealed no reports of such violence in KL in the media or on social media or in 17 interviews conducted; and
(iv) Members of the LGBI community experience varying degrees of discrimination depending on their socioeconomic class, religion, place of residence, and how they present themselves. Well-educated, wealthier LGBI people in urban areas are less likely to have to conceal their sexual orientation from their family and friends. KL society is generally more accepting of LGBI persons than in Sarawak, Sabah, or the Malaysian East Coast peninsula.
19. For these reasons, the respondent’s position is that the mistreatment that the appellant would face on return to Malaysia would not rise to the level of persecution or inhuman and degrading treatment, nor would it pose a very significant obstacle to her reintegration.
20. The appellant’s position is that the respondent’s assessment is contradicted by her own evidence, as set out in the country evidence sections of her current CPIN and the previous CPIN on the same subject published in 2020. The appellant also relies on the country evidence published by the Australian Department of Foreign Affairs and Trade (“DFAT”) in June 2021 and June 2024, US State Department Human Rights Reports from 2020 and 2021, two Human Rights Watch Reports from 2022, a Human Dignity Trust Report from 2023, and various news articles from 2023. The appellant contends that this evidence is sufficient to establish to the relevant lower standard of proof that lesbians who do not conceal their sexual identity face a “pervasive threats of serious harm” from both state and non-state actors.
21. The parties informed me that Ms Clewley wished to cross-examined the appellant, and that they were content for her to do so on the basis of the written witness statement she had submitted to the FTT, which was dated 12 June 2024.
22. The appellant adopted her statement and was cross-examined by Ms Clewley. In response to Ms Clewley’s questions, the appellant said that she came from a middle class family and that her sister who lived in the UK was a businesswoman and had paid for her student visa applications and supported her financially. She had completed only two years of her UK nursing qualification before returning to Malaysia. Other than her claimed fear of persecution, there was no obstacle to her completing her nursing qualification in Malaysia and taking up employment as a nurse there. She has work experience in Malaysia as an assistant in a clinic that practiced traditional Chinese medicine. Of her family in Malaysia, she is only in touch with one sister. Her father and brother refuse to speak to her because of her sexual identity; her mother died in 2015.
23. Ms Clewley then cross-examined the appellant about where and how often she had held hands with her partner P in Malaysia. The appellant said that they had held hands only occasionally and briefly, and only in Kuala Lumpur. They had been in a shopping mall in Kuala Lumpur on the occasion when they had been harassed for holding hands. After that, they did not dare show their affection in public. She also clarified that she people did not always give her “funny looks” when she bought P flowers, because some people probably thought they were just friends and the flowers were for a special occasion like a birthday.
24. Ms Clewley put it to the appellant that there was a gay community in Kuala Lumpur, particularly in the Klang Valley region, where “people are open and gather together and go out together and attend gay locations together”. She asked the appellant why she could not be part of that community. The appellant said that she had heard that police did “spot checks” in that area and disputed it was “free” as Ms Clewley suggested. She insisted that she would hide her sexuality in Malaysia because it would not be accepted by the general public and she would be at risk of physical punishment or imprisonment.
25. The appellant then answered a few questions from me and clarified that she had been back in Malaysia for just under a year before the incident in which she had been harassed for holding hands with P, and that the incident had contributed to the breakdown of their relationship.
26. I then heard submissions from Ms Clewley and from Mr Gilbert. Both focussed entirely on the country evidence. Ms Clewley stressed that the evidence of arrests and criminal prosecutions for same-sex sexual activity was limited and that the specific incidents of arrests, prosecution or punishment recorded in the CPIN were rarely in Kuala Lumpur and almost always under shariah law. Even where there were reports of arrests under federal law, the individuals targeted were identified as Muslims. The appellant could therefore live safely in Kuala Lumpur, especially as a non-Muslim.
27. Ms Clewley also submitted that reports of arrests and prosecutions and of state and societal discrimination related primarily to “effeminate” gay men or trans people and urged me to be “cautious” about taking any evidence in the CPIN or other country evidence about risks to LGBTQ+ people generally as indicating a real risk to the appellant, as a lesbian woman.
28. I drew Ms Clewley’s attention to the fact that this is not the position taken in the respondent’s CPIN. At [3.1.9] the respondent acknowledges the difficulty in identifying the specific risk to distinct groups:
“Sources often consider the situation for LGBTI collectively. Therefore, the treatment of individual groups is difficult to ascertain. Information often focuses on the experiences of trans women due to their increased visibility in society.”
29. However, the respondent does then go on to assess the risk to both “LGBTI” and “LGBI” persons generally. She says at [3.1.9] that
“Sources indicate that LGBTI persons as a group face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody. Information on the scale, frequency and severity of incidents of discrimination and violence by officials against LGBI persons is limited.”
30. The same approach is taken in the country evidence section regarding societal treatment. It is only in the country evidence section on “state attitudes and treatment” that there is a separate section on lesbians. However, this follows a section on “Official views on sexual orientation and gender identity” which repeatedly discusses state attitudes towards “LGBT culture”, “LGBT behaviour”, “LGBTIQ persons”, “LGBT people”, etc. Nowhere in the CPIN does the respondent say that her assessment of the risk to “LGBTI” or “LGBI” individuals should not be taken to apply to lesbians.
31. Ms Clewley responded by reiterating that “all” of the specific evidence of criminal arrest, prosecution and punishment for same-sex sexual activity was under shariah law in any event, including the only documented instance of the caning of lesbians.
32. In terms of societal harassment and discrimination, Ms Clewley submitted that the evidence indicated that this varied according to location and socio-economic status. As an educated, middle class woman, the appellant would be safe in Kuala Lumpur. There were “support services” available in the Klang Valley.
33. I then heard submissions from Mr Gilbert. He respondent to Ms Clewley’s submission that general statements about risks to LGBTQ+ people should not be taken to apply to lesbians by taking me to the language used by the potential actors of persecution, serious harm or discrimination. He pointed out that state and religious authorities and civil society actors routinely condemned “LGBT culture” and “LGBT behaviour”, and that nowhere in their language did they single out men or exempt lesbians. If the documented cases of arrest and prosecution were of “effeminate” gay men and trans people, it was because they were more visible.
34. Mr Gilbert then referred me to specific pages in the appellant’s bundle and the respondent’s CPIN that he said were sufficient to establish that the if the appellant returned to Malaysia and lived there openly as a lesbian woman, she would face a real risk of harm that either separately or cumulatively amounted to persecution. I consider that evidence in my findings below.
35. At the end of the hearing, I reserved my decision, which I now give with my reasons.
Legal framework
36. The burden of proof is on the appellant. Because she claimed asylum on 22 February 2020, prior to the enactment of the Nationality and Borders Act 2022, the standard of proof for all elements of her international protection claim is of a “real risk”. With regard to her claim to meet the requirements of Appendix Private life and to her article 8 claim, the standard of proof is the balance of the probabilities.
37. The legal framework for deciding asylum claims based on sexual or gender identity is uncontroversial. My analysis must proceed in four stages, as set out in HJ (Iran) at [35] and reiterated in a RT (Zimbabwe) v SSHD [2012] UKSC 38:
(i) Is the appellant a lesbian?
(ii) Would she conceal her sexual identity if she returned to Malaysia?
(iii) If so, what would be the reason for this? If it would “simply be in response to social pressures or for cultural or religious reasons of his own choosing”, then she is not entitled to international protection (presuming that any such concealment would be effective).
(iv) If the reason for concealment is a genuine fear of persecution, it is necessary to consider whether that fear is objectively well-founded.
38. The appellant relies on evidence of a range of potential harms from both state and non-state actors, ranging in severity from imprisonment under federal law to verbal street harassment and employment discrimination. I therefore remind myself of the established definition of persecution as including both an act that is sufficiently serious by its nature or repetition as to constitute a severe violation of basic human rights, and “an accumulation of measures” that affect an individual in a similar manner and that they cannot be reasonably expected to tolerate. See, e.g. HJ (Iran) at [12].
39. Answering the question of whether there would be very significant obstacles to the appellant’s reintegration in Malaysia requires a broad evaluative judgment of whether she will have “a reasonable opportunity to be accepted there, to be able to operate on a day-to-day basis in that society and to build up within a reasonable time a variety of human relationships to give substance to [her] private or family life.”: Kamara v SSHD [2016] EWCA Civ 813 at [14]. It is a “self-evidently elevated threshold, such that mere hardship, mere difficulty, mere hurdles and mere upheaval or inconvenience, even where multiplied, will generally be insufficient.”: Parveen v SSHD [2018] EWCA Civ 932 at [9] (citing Treebhawon v SSHD [2017] UKUT 13 (IAC) at [37]).
Findings of fact about the appellant
40. As set out above, the respondent has specifically accepted that the appellant is a lesbian and has had female partners in both Malaysia and the UK. The respondent has not specifically accepted the rest of the appellant’s account, but nor has she rejected any aspect of it in the refusal decision or challenged it in the cross-examination or submissions before me.
41. I begin with the section 8 factors. The appellant admitted at her screening interview that when she left Malaysia in 2019, she intended to claim asylum in the UK, but she wanted to do some travelling first. She arrived in the UK by air in April 2019 but then left the country to travel in Europe, only arriving back in the UK on 27 May 2019. She claimed asylum almost seven months later, on 22 February 2020. She was asked at her asylum interview why she did not claim asylum in the European countries she visited, and she answered that this was because she did not have friends or relatives in those countries, while her sister lives in the UK. She was asked why she did not claim asylum on arrival in the UK, and she answered that she did not know that she could do so.
42. I consider that the appellant’s credibility is damaged by this behaviour. Although the presence of a sister in the UK may be a good reason for preferring to claim asylum here rather than in Europe, it cannot explain why, having safely reached the UK, the appellant then decided to leave and travel in Europe for several months. This put her at risk of being denied re-entry to the UK and, potentially, returned to Malaysia. Nor do I find it plausible that an educated woman who speaks English well enough to obtain a student visa and pursue a nursing course in the UK and who had lived openly in the UK as a lesbian for a number of years prior to her return in 2019 would be unaware that she could seek asylum on the basis of her sexual identity.
43. There are, however, a number of significant positive credibility indicators in the evidence before me. I have read the records of the appellant’s screening and asylum interviews and her witness statement with care, and had the benefit of hearing oral evidence from her. Her account has at all times been internally consistent and reasonably detailed; nor does the respondent say otherwise. I also find that the appellant’s credibility was bolstered by the modesty of her evidence. For example, she did not say that she fears serious harm from her father or her brother and she volunteered that she continues to reach out to her father by sending him greetings on Father’s Day and at New Year’s, which suggests that she continues to have at least some hope of reconciliation. The incidents in Malaysia that reinforced her fears of revealing her sexual identity in public were undramatic: she says she was viewed with suspicion when buying flowers for her partners, and on one occasion members of the public threatened to call the police because she was holding hands with her, but they did not do so. Nor is there anything in the appellant’s evidence that is inconsistent with the country evidence before me.
44. For these reasons, having considered the appellant’s credibility in the round, and taking into account the lower standard of proof that applies to all aspects of the appellant’s claim, I accept her account in its entirety.
45. I therefore make the following findings:
(i) The appellant is a lesbian;
(ii) The appellant has had two female partners in the UK. In her words, while together in the UK, they did “everything a normal couple did”. They cohabited and socialised, travelled and shopped together as a couple and supported each other financially.
(iii) Although she is now single, the appellant continues to present herself as a lesbian woman in public, for example when socialising in LGBTQ+ venues.
(iv) In Malaysia, the appellant lived what she described, by contrast, as a “suppressed life”. Both of her relationships with women in Malaysia were conducted “discreetly”. They did not cohabit, and they kept their relationships hidden from their relatives and colleagues.
(v) The primary reason the appellant lived a suppressed life in Malaysia was that she feared arrest by the police –she this fear at her screening and substantive interviews, in her appeal statement and in her oral evidence before me.
(vi) She also fears harm from non-state actors, including being reported to the police.
(vii) The fears of both the appellant and her partners, the restrictions on how they could conduct their relationship, and the impact of being threatened for showing affection in public all played a role in the breakdown of the appellant’s relationships in Malaysia.
46. I therefore find that the appellant has a genuine, subjective fear of persecution on the basis of her sexuality, that it is because of that fear that she led a “suppressed life” in while in Malaysia, and that living a suppressed life contributed significantly to the breakdown of both of the relationships she pursued there.
Findings on future risk
47. In terms of objective risk, I agree with Mr Gilbert’s submission that there is no basis for assuming that evidence that describes risk to LGBTQ+ persons generally does not apply with equal force to lesbians. All of the actors of persecution denounce all forms of non-conforming sexual identity in the same terms and in a single breath. I set out just one example from the many such statements found in the respondent’s CPIN, taken from a written Parliament response by a government minister in 2023:
“As a country that upholds Islam as the religion of the Federation and that instils moral values based on traditions, culture and religion, the government is firm in not recognizing the lesbian, gay, bisexual and transgender people. “LGBT behaviour” (added by writer) is against religion, morals, Malaysia’s culture and laws, both civil and Syariah laws. … LGBT communities’ rights to “practise their lifestyle” are subject to the laws that prohibit such acts.”
48. Similarly, in September 2023, the Prime Minister defended the banning of Pride watches on the grounds that they were “detrimental, or possibly detrimental, to morality, public interest and national interest by promoting, supporting and normalising the LGBTQ movement which is not accepted by the general public.” Both speakers, and many others cited in the CPIN, denounce lesbians, gay men and transgender people equally, and for the same reasons.
49. Moreover, the reason given for suppressing “LGBT behaviour” is not only that it is seen as inconsistent with Islamic teaching. It is also described as inconsistent Malaysian culture and tradition more generally, and as a threat to the public and national interest. There is nothing here to suggest that non-Muslims are free to express their sexual identity without interference from the state. Indeed, given the authorities’ express intention of reversing what they see as the dangerous “normalisation” of “LGBT culture”, it would make little sense to allow non-Muslims to express that culture openly.
50. In assessing the risk to the appellant, should she chose to live a normal life as a lesbian woman, I therefore take into account the evidence of risks to LGBTQ+ persons more generally. Nor do I exclude as irrelevant evidence of the mistreatment of gay men and trans people unless there is a specific reason to do so (for example, where the risk arises from trans women being detained with men).
51. Where there is evidence about lesbians specially, it reinforces my conclusion that lesbians are not exempted from attacks on “LGBT behaviour”. This evidence includes a 2022 Human Rights Watch report excerpted in the respondent’s CPIN at [7.2.8]:
“Between 1985 and 2019 every Malaysian state and federal territory introduced Sharia criminal enactments containing provisions criminalizing “a man posing as a woman” or “a woman posing as a man”. Malaysia thereby became one of the few countries in the world to explicitly criminalize transgender people. Most recently, Negeri Sembilan amended its law in 2019 to add an offense of “a woman posing as a man” and simultaneously increased penalties; it had previously only criminalized “a man posing as a woman.” From 2008 to 2010, seven states issued fatwas (Islamic edicts) against pengkid, which roughly translates as “tomboy” or “masculine woman.” The fatwas declare that women who have a “masculine appearance or gestures” or a “male sexual instinct” are forbidden in Islam.”
Although these developments relate specifically to gender non-confirming Muslim women, I find that they do not give me any reason to presume that women are excluded from threats against “LGBT behaviour”.
52. More recently, the 2024 DFAT report stated that:
“Lesbians and queer women are much less visible in Malaysia than other members of the LGBTQIA+ community. LGBTQIA+ activism in Malaysia has historically focused on HIV, as HIV was often the only issue considered ‘acceptable’ for government engagement. Accordingly, NGOs advocating for lesbians and queer women are less prominent and have less funding. Forced heterosexual marriages for lesbians are common, especially in Sabah. Lesbians in such marriages find it very difficult to obtain a divorce without outing themselves, especially if they are Muslim. In rural areas, families sometimes confine lesbians to the family home due to cultural stigma. Treatment of lesbians is worse for Muslim women as syariah criminalises sexual activity between women. In-country sources reported there were four arrests of Muslim women for syariah offences over two months alone in early 2022. While syariah offences only apply to Muslim women, they also have a large impact on non-Muslim lesbians by harming their relationship with authorities.”
53. Not all of this applies to this appellant. However common forced marriage may be, this is not a fear expressed by this appellant. Nor is she from a rural or Muslim community. I also agree with Ms Clewley that the phrase “harming their relationship with authorities” is vague and insufficient, taken on its own, to establish the existence of harm rising to the level of persecution. Nonetheless, I put some weight on the assessment that the enforcement of shariah laws against Muslim lesbians has a “large impact on non-Muslim lesbians” because it is consistent with evidence discussed below about the impact of raids allegedly targeting Muslims on LGBTQ+ more generally.
54. In assessing the likely future risk to the appellant, I have focused on the respondent 2024 CPIN and the more recent country evidence adduced by the appellant, namely the DFAT report from 2024, the Human Dignity Trust report from 2023, the two Human Rights Watch reports from 2022, and the various news articles from 2023. This is because it is the appellant’s case that the mistreatment of LGBTQ+ people has increased in recent years (see, e.g. [12]-[13] of her skeleton argument). I find that this view is shared by many of the sources quoted in the respondent’s 2024 CPIN (see, for example, at [7.2.9], [7.3.5], [7.4.5], [8.1.6]-[8.1.14], [8.6.6-8.6.7], [8.6.11-8.6.12], [9.2.9], [11.2.3]) and consistent with evidence in the DFAT, Human Dignity Trust and HRW reports before me. I have therefore disregarded the 2020 CPIN in assessing the likely future risk to the appellant on return now. Unless otherwise specified, all further references to the CPIN are to the current version, published in July 2024. For the same reason, I have also disregarded the 2020 and 2021 US State Department Reports.
55. In her submissions, Ms Clewley was unable to take me to any specific country evidence that supported the position taken by the respondent in the refusal letter that “LGBT community are able to live openly gay [sic]” and “people in Malaysia are open about their sexuality”. She pointed to the assertions in the assessment sections of the CPIN at [5.1.3] and [5.1.4], but she accepted that these assessments are not evidence and should not be treated as such (see Roba (OLF - MB confirmed) Ethiopia CG [2022] UKUT 00001 (IAC) at [83]-[85] and KK and RS (Sur place activities: risk) Sri Lanka CG [2021] UKUT 00130 (IAC) at [301]) and invited me to follow the hyperlinks to the country evidence sections contained in those paragraphs. The discussion below is therefore based on a consideration of the country evidence section of the CPIN, in its entirety.
56. I set out below what I consider to be key aspects of the evidence in the CPIN, beginning with evidence of any risk of state mistreatment.
(i) State authorities at all levels regularly denounce “LGBT behaviour”, “practices” and “culture” and promise to take action against it in the name of protecting Islam and Malaysian religion, society, culture and tradition more broadly.
(ii) The state censors expression of support for LGBTQ+ rights, banning books, monitoring and limiting (although not entirely shutting down) online content, criminalising the possession of Pride-branded accessories, and subjecting people who protest in support of LGBTQ+ rights to criminal investigation.
(iii) The state actively encourages and funds what are described as rehabilitation, re-education and counselling programmes intended to persuade LGBTQ+ individuals to change their sexual and/or gender identity. Muslims can be ordered by the authorities to participate in such programmes, but the government also actively encourages participation by non-Muslims.
(iv) Although most documented cases of prosecutions for same-sex sexual activity are brought against Muslims under shariah law, the federal police sometimes undertake joint raids on public and private places, acting together with religious authorities.
(v) According to a 2022 Human Rights Watch report, the authorities use such raids to generate income through extorting or blackmailing those targeted.
(vi) Statistics on arrests and prosecutions of LGBTQ+ individuals are not up-to-date or easily accessible, and the exact number of prosecutions is unknown.
(vii) The government’s Department of Statistics reported 61 cases of arrests for “unnatural sex” under the federal penal code (i.e. not shariah law) in Kuala Lumpur between 2020 and 2022 reported but did not specify the sex or gender of the accused, the nature of the “unnatural sex” acts in question, how many people were involved, or the outcome or progress of the investigation.
(viii) According to a 2023 US Department of State report, “Observers reported that violence against LGBTQI+ persons was common, and that police at times perpetrated and condoned such violence, including against individuals in custody.” and
(ix) According to the submission of the US Human Rights Foundation to the UN Office of the United Nations High Commissioner for Human Rights (OCHCR) in November 2023, “LGBTQ+ persons were vulnerable to harassment, arbitrary arrest and detention.”
57. DFAT’s current assessment, from June 2024, is set that:
“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.”
58. In the introduction to the report, DFAT explains that “high risk” means that “DFAT is aware of a strong pattern of incidents” and “moderate risk” means that it is “aware of sufficient incidents to suggest a pattern of behaviour”. In other words, DFAT’s current assessment is that LGBTQIA+ people in general face a high risk of official discrimination, and a moderate risk of societal discrimination and familial and/or societal violence, while the risk to Muslims, trans people, and those from rural or low income backgrounds is greater. It is not, as contended by the respondent, that only Muslims, trans people and those from rural or low income backgrounds are at risk.
59. I agree with Mr Gilbert that the existence of a pattern of behaviour sufficient to give rise to a “moderate risk” of discrimination and violence is likely to be sufficient to establish that there is a “real risk” of persecution. However, this assessment only takes the appellant so far, because this is DFAT’s policy assessment. It is not evidence, as noted in Roba and KK. I therefore turn to the evidence before me.
60. Ms Clewley submitted that the appellant was unlikely to be at risk of arrest because the specific recent arrests and prosecutions of LGBTQ+ people reported in the CPIN and the DFAT report mostly related to gay men and trans people. I agree with Mr Gilbert’s submission, however, that these reports should not be taken as a comprehensive record of all such arrests, particularly when bearing in mind the relevant low standard of proof. In the first place, the section in the respondent’s CPIN entitled “Data on arrest and prosecution” begins with statements from both civil society and official sources confirming that statistics of arrests and prosecutions are neither up-to-date and nor easily accessible and that they lack essential details. This is consistent with the reports that arrests are often used as a means of extortion; in such cases, it is reasonably foreseeable that accurate records would be either never be made or not disclosed.
61. I also agree with Mr Gilbert’s submission that it is reasonably likely that the reason that most recorded incidents of criminal prosecution and punishment relate to “effeminate” gay men and trans people is that both groups are more visible. Indeed, Ms Clewley accepted this as well. In other words, I do not find that the evidence supports a finding that only gay men and trans people are at real risk of arrest. I find that it is reasonably likely that if the appellant were to live in Malaysia as she lives in the UK, she would be equally visible as those usually targeted in Malaysia, and therefore equally at risk.
62. It is difficult to determine the degree of risk of arrest with any precision. This reflects the limitations of the statistics noted above, as well as the police practice of using arrest as an opportunity for extortion (which is inherently unlikely to be accurately recorded). It also reflects the difficulty of predicting what would happen to the appellant if she led her life in Malaysia as she has chosen to lead it here, because, contrary to the respondent’s assertions, there is no evidence of lesbians in Malaysia doing so. I consider, however, that these kinds of difficulties are taken into account by the requirement to apply the low standard or proof of a “real risk” or a “reasonable likelihood”. Applying that standard, I find that the general reports of arrests, extortion and societal violence against LGBTQ+ people, combined with the specific reports of arrests of more visible members of that group, are sufficient to establish that the appellant would be at real risk of arrest, extortion and police violence if she returned to Malaysia and lived what she perceives as a normal life – cohabiting with a partner, treating her partner as such in public and socialising at LGBT+ venues. That risk is increased by evidence in the 2024 DFAT report that people stopped by the police may have their mobile phones checked for “LGBTQIA+-related messages and dating apps” and that doxxing is “common”. Because she is not a Muslim, however, the evidence is not sufficient to establish that she would be at real risk of criminal prosecution and punishment.
63. The appellant’s primary subjective fear is of arrest, but she also expresses a fear of societal mistreatment. In this regard, the respondent relies heavily on the 2021 DFAT assessment that:
“The level and frequency of discrimination faced by members of the LGBTI community differs according to their socio-economic status, religion, geographic location and degree of openness. Well-educated urban LGBTI individuals of high socio-economic status are less likely to have to hide their sexuality within their family and social circles […] society is generally more permissive of people who identify as LGBTI in Kuala Lumpur than they are in East Coast peninsular Malaysia or Sarawak and Sabah.”
64. As noted above, this is an incomplete statement of DFAT’s current assessment, which is that, in general, LGBTQIA+ people face a moderate risk of “societal discrimination, which may include being subjected to prosecution, ‘re-education’, exclusion from public spaces, housing, and employment opportunities” and a moderate risk of family and/or societal violence. I note that the appellant does not say that she fears violence from her family.
65. As with state persecution, the CPIN acknowledges that “Sources often consider the situation for LGBTI collectively and therefore the treatment of individual groups is difficult to ascertain. Often information focuses on the experiences of trans women due to their increased visibility.” For the reasons set out above, I nonetheless consider evidence of harm to all LGBTQ+ people as relevant to the assessment of risk to this appellant, unless there is a specific reason not to do so.
66. There is no reliable evidence to support the respondent’s position that LGBTQ+ people are able to express their sexual or gender identity freely and without fear in Malaysia, even in Kuala Lumpur. According to the UN Office of the High Commissioner for Human Rights in November 2023, “hateful rhetoric and discriminatory laws had led to a rising tide of incitement to discrimination, hostility and/or violence towards LGBTIQ+ persons.” At least four trans women were murdered between January and November 2023, two in Kuala Lumpur, one in the appellant’s home area of Selangor, and one in Johor, an area to the south of Kuala Lumpur, on the border with Singapore.
67. Lesbians are reported to face particular forms of workplace discrimination, due to the combination of sexism, misogyny and homophobia. I note that this is consistent with the appellant’s account of her work colleagues questioning her about why she did not have a boyfriend and offering to introduce her.
68. A 2019 report by SUHAKAM (the Human Rights Commission of Malaysia) reported that transgender people in Kuala Lumpur and Selangor faced challenges in accessing education, due in part to “unwanted sexual gestures, language, image, molestation or unwanted touching, threat of rape and rape or coerced sex” and that “the perpetrators of the incidences were from peers and teachers or lecturers.”
69. The CPIN cites DFAT’s 2021 assessment that “LGBTI civil society organisations are generally able to operate unhindered but high-profile work and leaders may be targeted”, but there is no specific evidence of this in the CPIN. In the 2024 DFAT report, moreover, this sentence has been deleted and replaced by the assessment that “LGBTQIA+ civil society organisations face a moderate risk of official discrimination in the form of legal charges and harassment by officials.” According to the evidence in the CPIN, with the exception of organisations and services concerned with HIV response, LGBT groups face challenges in registering as NGOs and government monitoring and intimidation. There have been no Pride events in Malaysia since 2017, and in 2023, LGBTQ+-inclusive rallies faced criminal investigation (the outcome of which was unknown at the time of publication).
70. There is no evidence of LGBTQ+ people socialising openly. The CPIN reports that they use private Instagram, WhatsApp and Telegram groups to communicate, and prefer to be “discreet by frequenting chains like Starbucks, or meeting in café-bars” in upmarket shopping malls. This is consistent with the appellant’s account of having met with P in a shopping mall, and also with her account of having been harassed and threatened there when they were insufficiently “discreet”.
71. In her cross-examination, Ms Clewley put it to the appellant that there is a gay community “in KL, particularly in the Klang Valley region, and people are open and gather together and go out together and attend gay locations together.” The appellant denied this. In her submissions, Ms Clewley relied on [11.3.4] of the CPIN. This states:
“The ARROW report of 26 January 2021, noted:
‘LGBTQ activism and networks [in Kuala Lumpur] are concentrated in the Klang Valley. There are more support services and community groups for LGBTQ people compared to other states. This includes HIV services for gay men and trans women, shelter for trans women, mental health support, and online and offline community support, amongst others, provided by groups of various sizes and registration status…”
72. The same report is cited at [11.3.5] as stating that there were “non-registered groups, who organise open houses, gatherings and other social events.” The report from which this was taken is not before me, but I note that according to what is said at [7.2.4], it covered the period from 2018-2020. Given the multiple reports of a deterioration in the human rights situation for the LGBTQ+ community in Malaysia in recent years, I put limited weight on this evidence. Even taken at its highest, it does not describe an open LGBTQ+ community in the Klang Valley but rather a few specific support services and, vaguely, “online and offline community support […] provided by groups of various sizes and registration status”. I also take into account the consistent evidence that the government is uniquely tolerant of HIV services, such that their existence is not a reliable indicator of a more general openness.
73. Two other items of evidence in the CPIN are, I find, potentially misleading if taken out of context, although I do not suggest that the respondent has expressly asked me to view them in this way. At 11.3.6, the report quotes an article published in an Australian publication in December 2022, in which a Malaysian lesbian describes having created an Instagram account in which she identifies herself as a lesbian and says she uses the account “to advocate for LGBTQ+ teens and adults, to call out homophobia among my peers, and to shove (metaphorical) rainbows in people’s faces.” However, the footnote reveals that the article in question was entitled “Being a lesbian in Malaysia: Coming out by not coming out”. The CPIN contains no hyperlink to the article, but it is accessible online. It begins:
“At present, same-sex marriage is illegal in Malaysia. On top of this, queer and transgender people face horrific discrimination and prosecution simply for existing here. I’ve seen the community experience it all: imprisonments up to 20 years, canings, fines…”
74. As to the Instagram account mentioned in the CPIN, the author says,
“I never intended to share my identity anywhere. Not to my friends, not to my family, not to anyone. I was content living my life alone in a small apartment, working 10 hours a day and possibly adopting a cat.
“Yet, a part of me couldn’t help but ask: what if I gave myself the permission to be whoever I wanted to be online? What if I embraced my sexuality openly in a virtual space where I could be anyone without consequences? […]
“I never had the luxury to officially come out to the people who matter most. [….]
“I could only be gay behind a different name – a concealed identity.
“And yet, I feel satisfied. I’m proud.
“I don’t need to go around declaring that I’m a lesbian in order to feel valid – especially now that I have a platform to express myself freely and through ways that keep my gayness alive.
“I’m not a coward who doesn’t have the guts to admit who I really am.
“Staying in the closet is a choice. Stepping one foot out of the closet is just as brave as kissing a girl or wearing a pride flag on the streets.
“Of course, someday I’d love to stand up in front of a crowd and introduce myself as a lesbian. One day, I hope to wake up to a world where I can marry a woman and live my happily ever after.
“Even if it’s years down the line, I want to see people like me living their truths openly, without fear. I want to find pride flags in our classrooms. And I want the word “gay” to no longer be a taboo.”

The article was published under a pseudonym. I find that this article supports the appellant’s claim that it is not possible to live openly as a lesbian in Malaysia.
75. Similarly, at 11.3.7, the CPIN states that “CNN published a photo of participants in a Women’s Day March asking for greater rights in gender equality and recognition of the LGBTQ community in Kuala Lumpur, Malaysia on March 12, 2023.” Here, the CPIN omits to mention that this led to a criminal investigation of those involved, as reported separately at [11.2.6].
76. In summary, having read the respondent’s evidence in its entirety and with considerable care, I find that it does not support the position taken by the respondent in this appeal, or the assessment set out at [5.1.4] of the CPIN. I find that the evidence is sufficient to establish, even to the higher standard of proof, that LGBTQ+ people are subjected to official discrimination and persistent hate speech from both state and non-state actors and at risk of societal violence and discrimination in education, housing and employment. LGBTQ+ events and gatherings are raided by police, and the expression of pro-LGBTQ+ views in public has resulted in censorship and criminal investigation. LGBTQ+ people engage in self-censorship and, for the most part, socialise “discreetly”. Some may not conceal their sexual or gender identity from friends and family, but there is little or no evidence of the possibility of living a normal rather than a suppressed life (to use this appellant’s words) without fear.
77. I find that there is a real risk that the appellant would be subjected to a series of acts of harm that would, cumulatively, rise to the level of persecution because they would result in the denial of her fundamental human rights. The risk of less serious acts of harm – subjection to hate speech from state and non-state actors and discrimination in employment, housing and education – may be higher than the risk of greater harms, such as non-state violence and arrest, extortion and violence at the hands of the police. I find, however, that the evidence is sufficient to establish that these even more serious risks are nonetheless real, to the relevant lower standard of proof. I further find that the evidence is sufficient to establish that the cumulative effect of the genuine threat of arrest, extortion and violence, combined with the combined with the various other lesser harms described above would rise to the level of persecution.
78. I also find that, to the higher standard of proof, the climate of hostility to lesbians would pose a very significant obstacle to the appellant’s reintegration in Malaysia, as defined at Para. PL 5(1)(b) of the Immigration Rules and relevant caselaw. By her own account, this climate contributed directly to her inability to sustain a family life there with either of her partners in the past. As found above, the climate has become persistently more threatening since then. It is relevant here that of the two romantic relationships the appellant pursued in Malaysia, one was with a woman she met in the UK and the other was with a woman she had known since primary school. Neither, therefore, is evidence of an ability to build a family life there in the future with a new partner. If she returned to Malaysia, the appellant would be faced with choosing between running a real risk of serious harm or living a “suppressed life” in which there would be very significant obstacles to forming or sustaining friendships and family relationships. She would hide her true identity from colleagues, have no opportunities for socialising freely, and face very significant difficulties in forming and sustaining a family relationship with a new partner.
79. The respondent does not say that the appellant is unsuitable for a grant of leave on the basis of her private life. I therefore find that she meets the requirements for a grant of leave to remain under Appendix Private Life. I further find that the decision to remove her from the UK would engage the protections of article 8 ECHR, because she has now lived in the UK continuously for more than six years, and the evidence demonstrates that she has established a vibrant private life here in the LGBTQ+ community. Removing her from the UK would significantly interfere with that private life, particularly in light of the difficulties she and her friends would face continuing their relationships through communication or visits in the threatening environment described above. Because she meets the requirements of the Immigration Rules and there are no countervailing factors, her appeal must be allowed on article 8 grounds: TZ (Pakistan) v SSHD [2018] EWCA Civ 1109.

Notice of Decision

The appeal is allowed on Refugee Convention grounds.

The appeal is allowed on human rights grounds, with reference to articles 3 and 8 ECHR.

The appeal is dismissed on humanitarian protection grounds because the appellant is a refugee.


E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 January 2026

Order under Rule 10(1)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008

As I have allowed the appeal, I have considered making an order for the respondent to pay the appellant’s appeal fee, as provided for by Rule 9(1)(b) of the Tribunal Procedure (First-tier Tribunal) (Immigration and Asylum Chamber) Rules 2014.

I make an award of any fee that was paid or payable, because I find that the respondent’s decision was not sustainable, given the evidence before the decision-maker.


E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

8 January 2026


ANNEX
(Error of law decision)


IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005215

First-tier Tribunal No:
PA/54134/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

GCC
(ANONYMITY DIRECTION MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Gilbert, instructed by Milestone Solicitors
For the Respondent: Mr K. Ojo, Senior Home Office Presenting officer

Heard at Field House on 1 August 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 her. Failure to comply with this order could amount to a contempt of court.


DECISION AND REASONS

1. The appellant appeals with permission against the decision of First-tier Tribunal (“the FTT”) dated 9 September 2024, dismissing her protection appeal. It is accepted that the appellant is a citizen of Malaysia, a lesbian and from a Buddhist background.
2. The question before the Upper Tribunal is whether the FTT erred in finding that the appellant was not at real risk of serious harm on return to Malaysia and that there were no very significant obstacles to her reintegration there.
3. For the reasons set out below, I conclude that the FTT did err by making several factual findings that were contrary to the evidence before it or not sufficiently reasoned, and that the FTT’s decision must therefore be set aside and remade.

The appellant’s asylum claim
4. The appellant is a citizen of Malaysia from a Buddhist background. The respondent has specifically accepted that she is a lesbian. It does not appear to be in dispute that she has had female partners both in Malaysia and the UK, and that while living in the UK she has not concealed her sexual identity.
5. The appellant claimed asylum on 22 February 2020, and the respondent refused her claim on 4 July 2023. The respondent accepted that she was a lesbian but refused the claim with reference to various statements made in the assessment section of her CPIN, Malaysia: Sexual orientation and gender identity or expression of June 2020. The respondent’s assessment was that as a non-Muslim, the appellant would not be at risk of criminal prosecution in Malaysia or other harm from the state. Nor would she be at risk “from society”, and therefore, she “would not warrant protection”. Moreover, according to the website Holidify, the LGBT community “are able to live openly gay as there are night clubs that operate within the country” and “are able to attend LGBT events”. The appellant would be able to “explore [her] sexuality openly in Kuala Lumpu” [sic]. There were no significant obstacles to her reintegration, given her age, education and work experience.
The appeal before the FTT
6. The appellant appealed, but she did not provide her appeal evidence in time for the respondent to carry out a meaningful review.
7. The appellant’s evidence before the FTT included: an appeal statement and statements from three witnesses (a friend, her sister, and her brother-in-law); evidence of her social activities within the LGBT community in the UK; and over 300 pages of independent country evidence, consisting of the respondent’s 2020 and 2024 CPINs Malaysia: Sexual orientation and gender identity or expression, reports from DFAT Australia from 2021 and 2024, US Department of State Human Rights Reports from 2020 and 2021, two 2022 reports from Human Rights Watch, a report from the NGO Article 19 from 2023, and four news articles. The appellant’s skeleton argument made detailed reference to the country evidence, which it argued showed a real risk of societal violence and of harassment, blackmail, extortion and even detention and violence by the police, as well as widespread stigma and discrimination. The skeleton argument also cited the respondent’s assessment, published in the CPINs, that ’It would be unreasonable to expect a person identifying as LGBTI to seek protection from the authorities’ and ‘In general, the state is able but is not willing to offer effective protection’.
8. The FTT heard oral evidence from the appellant and her three witnesses, which is summarised in the decision. In a decision dated the same day as the hearing, it dismissed the appeal.
The FTT decision
9. In the challenged the decision, the FTT set out the details of the appellant’s most recent travel to the UK [1] and the fact that she claimed to fear persecution for reasons of being a lesbian [2]. The reasons for refusal were then summarised from [3]-[9]. At [13], the FTT referred briefly to the cases of Sivakumaran [1998] AC 958, Karanakaran [2000] 3 All ER 449 and Horvath [2000] Imm AR 552. The FTT also directed itself as to the requirements of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006, although it did not explain why it did so spite of the regulations having been revoked by section 30(4) of the Nationality and Borders Act 2022.
10. The FTT’s “Determination and reasons” were set out at [15]-[49]. This began with a brief summary of the arguments made in the appellant’s skeleton argument: [16]-[17] It was acknowledged here that the appellant relied on an unreported Upper Tribunal decision in which a UT Judge had found that there was “a real risk of serious harm from the authorities towards openly LGBT people” in Kuala Lumpur, as well as on the CPIN, which quoted a DFAT report describing “a moderate risk of societal violence towards lesbians”, and a Human Rights Watch report for 2019 that stated that “lesbians face violence from both the state and civilian actors.”
11. The guidance in HJ (Iran) [2010] UKSC 31 was summarised at [18]-[20].
12. The FTT then set out aspects of the country evidence before it at [21]-[26], as follows:
21. The CPIN on Malaysia: Sexual Orientation and Gender Identity and Expression dated June 2020, states that LGBT issues are frequently devolved to Sharia law which applies to Muslims across all 13 states and 3 federal territories. All of them criminalise same sex sexual activities with fines or up to three years imprisonment and whipping.
22. At paragraph 2.4.5 it quotes the Australian Department of Foreign Affairs (DFAT) which stated that in November 2019 prosecutions in relation to same-sex activities have not been common; the ones they [sic] did occur have been in relation to Sharia based legislation rather than federal law. At paragraph 2.4.7 it states that LGBT clubs have been able to operate, having been left alone by the authorities. However, in August 2018 Malaysia’s oldest gay bar in Kuala Lumpur, the Blue Boy nightclub which had operated without incident for 30 years was raided. Some people were detained for counselling by the federal territory Islamic religious department of Malaysia.
23. At paragraph 2.4.14 the report states that in general LGBT persons are unlikely to be of particular interest to the authorities and are unlikely to be prosecuted under the Penal Code. Muslim LGBT people are liable to prosecution under Sharia law. At paragraph 2.4.32 it states that all LGBT people have faced threats, stigma and/or violence including sexual violence and discrimination from society. To avoid discrimination and ostracism by their families some hide their identity.
24. Paragraph 2.5.4 states that it would be unreasonable to expect a person identifying as LGBTI to seek protection from the authorities however such persons are not arrested due to their sexuality but are arrested due to same-sex sexual activity although the law is rarely enforced. It states that in general the state appears able but unwilling to offer effective protection; each case needs to be considered on its own facts.
25. The Human Rights Watch report dated 10 August 2022, states that the law criminalises “sexual intercourse against the order of nature”. In recent years, the government has shut down events designed to promote LGBT rights. LGBT people interviewed said the environment in Malaysia was becoming increasingly hostile.
26. The US State Department report on Malaysia dated 2021, states that same sex sexual conduct is illegal. The law states that sodomy and oral sex acts are “carnal intercourse against the order of nature”. The authorities often charge transgender people with indecent behaviour and importuning for immoral purposes in public. Those convicted of a first offence face a token fine and a maximum sentence of 14 days imprisonment. The report states that LGBTQI persons reported discrimination in employment, housing and access to some government services due to their sexuality.
13. The FTT did not explain why it relied on the respondent’s 2020 CPIN, which had been withdrawn in July 2024, rather than on the one that replaced it.
14. At [27]-[31], the FTT summarised the oral evidence before it. There is only one part of that summary that is relevant to the appellant’s appeal to the Upper Tribunal. This was the summary of the appellant’s evidence:
27. The appellant accepted in evidence that she has never had problems with the authorities in Malaysia. She said that that is because they do not know that she is a lesbian. She said that she felt discriminated against because someone would approach our [sic] if she held hands with her partner or held her shoulder. She said on one occasion someone passing by spat on her.
28. She said that she did not mention being spat on in her witness statement because she did not remember to say everything. Whilst I accept that the appellant may have been shouted out by a member of the public when she was holding hands with her girlfriend, I do not find it credible that she was spat on. I find that if that had happened, she would have mentioned it in her witness statement or in her asylum interview. I find that she has embellished her claim.
15. The FTT’s findings were set out at [32]-[49]. In summary, they were that:
(i) When she lived in Malaysia, the appellant “did not fear being arrested or punished and openly held hands with her partner in the street" [34]. She “lived openly as a gay woman” and “was able to have a same-sex relationship”: [35]
(ii) She had never been arrested or punished in Malaysia: [34].
(iii) The appellant’s father “disapproves of her sexuality and has chosen not to respond to any contact from her” but she was in contact with her siblings: [35]
(iv) “The appellant gave evidence that she attends gay bars in the United Kingdom. The objective evidence makes it clear that there are also gay bars in Malaysia including in Kuala Lumpur. To [sic] attend gay bars if she wished to do so.”: [35]
(v) “generalised discrimination from society towards LGBT people does not in itself amount to persecution, particularly for non-Muslim citizens.”: [36]
(vi) “There is a criminal justice system operating in Malaysia. I find that there is a sufficiency of protection to the Horvath standard. Those who perpetrate violence against others including LGBT people are arrested. The appellant has never sought the protection of the authorities because she has never been threatened or attacked as a result of her sexuality.”: [37]
(vii) The appellant’s submission that there would be very significant obstacle to her reintegration because of the “hostile environment” towards LGBT people was not persuasive, because the appellant had been “able to have a same-sex relationship” and had never been arrested or questioned by the authorities: [42]
16. On the basis of these findings, the FTT dismissed the appeal on all grounds.
The grounds of appeal
17. The appellant has been granted permission to appeal on four grounds.
18. Ground One challenges the FTT’s assessment of risk on return, on multiple grounds:
(i) Three specific findings about country conditions were “wholly contradicted by” the evidence that was before the FTT. These were the findings that “Homosexuals per se would not be targeted by the authorities unless there is evidence of same-sex sexual activities” (at [33]); that there were gay bars in Kuala Lumpur that the appellant could attend (at [35]); and that there was sufficiency of protection for LGBT people (at [37]). These findings were perverse. In the alternative, the FTT had erred by failing to give anxious scrutiny to the copious evidence that was contrary to them, or by failing to give any reasons as to why that evidence had been disregarded.
(ii) The FTT had erred by relying on the assessment section of the respondent’s CPIN, rather than the country evidence section; reliance was placed on KK and RS (Sur Place activities: risk) Sri Lanka CG [2021] UKUT 130.
19. Ground Two was that the FTT had misdirected itself in law by failing to take into account the cumulative effect of state and societal violence and discrimination when deciding that the treatment the appellant would face on return did not rise to the level of persecution; the appellant relied here on MT (Algeria), RB (Algeria) and U (Algeria) v Secretary of State for the Home Department [2007] EWCA Civ 808 at [174] for the principle that “the correct approach is to consider the cumulative effect of the evidence”.
20. Ground Three was that the FTT’s finding that the appellant had lived openly and without fear was perverse or inadequately reasoned.
21. Ground Four was that the FTT’s finding that there was sufficiency of protection was perverse, in that what was said at [24] and {37]-[38] was internally inconsistent.
22. There was no Rule 24 response.
The hearing
23. At the hearing before me, I had a 531-page composite bundle prepared by the appellant. Although Mr Ojo did not have the composite bundle he confirmed that he had access to all of the documents and was prepared to proceed. I heard detailed and thoughtful submissions from both representatives, for which I am grateful. I took those submissions into account, and I will refer to them where relevant in the discussion below.
Discussion
24. In deciding whether the FTT made a material error of law, I have reminded myself of the principles set out in a long line of cases, including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47], and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4]. Particularly relevant here is what is said in Volpi, at [2]:
(i) An appeal court should not interfere with the trial judge's conclusions on primary facts unless it is satisfied that [they were] plainly wrong.
(ii) The adverb “plainly” does not refer to the degree of confidence felt by the appeal court that it would not have reached the same conclusion as the trial judge. It does not matter, with whatever degree of certainty, that the appeal court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached.
(iii) An appeal court is bound, unless there is compelling reason to the contrary, to assume that the trial judge has taken the whole of the evidence into consideration. The mere fact that a judge does not mention a specific piece of evidence does not mean that [they] overlooked it.
(iv) The validity of the findings of fact made by a trial judge is not aptly tested by considering whether the judgment presents a balanced account of the evidence.
(v) The trial judge must of course consider all the material evidence (although it need not all be discussed in [the] judgment). The weight which [the trial judge] gives to it is however pre-eminently a matter for [them].
(vi) An appeal court can therefore set aside a judgment on the basis that the judge failed to give the evidence a balanced consideration only if the judge's conclusion was rationally insupportable.
25. I have also borne in mind the danger “island-hopping” and the need to look at the FTT’s reasoning as a whole. See Fage UK Ltd & Anor v Chobani UK Ltd & Anor [2014] EWCA Civ 5 [114].
26. After hearing from both parties at length and considering all of the evidence that was before the FTT, I have concluded that several of the FTT’s factual findings were rationally insupportable or insufficiently reasoned, and that these flawed factual findings materially undermined the assessment of future risk and of obstacles to reintegration.
27. Ground One is made out in part. State protection was a material issue, because the FTT had noted the evidence of a risk of societal violence at [17] and [23]. The respondent’s position (acknowledged in part at [24]) was that it was unreasonable to expect LGBT people to approach the Malaysian authorities for protection, and that the authorities were unwilling to protect them. Even if it were open to the FTT to go behind this position, Mr Ojo was unable to take me to any evidence that could rationally justify doing so. Mr Gilbert, by contrast, took me to numerous reports of incidents of police harassment of LGBT people, and even of detention, extortion and violence. Mr Ojo’s only defence of the FTT’s finding on sufficiency of protection at [36] was that it may have been a typographical error, and the FTT had intended to write “I find that there is not a sufficiency of protection”. However, this cannot be reconciled with the sentence that follows: “Those who perpetrate violence against others including LGBT people are arrested.” The conclusion is inescapable that FTT intended to find that the appellant would have access to state protection against societal violence, but that there was no evidence before it to support that finding.
28. For essentially the same reasons, Ground Four is also made out.
29. I further find that the FTT’s finding at [33] that “Homosexuals per se would not be targeted by the authorities” is insufficiently reasoned. The scope of the duty to give reasons was set out MK (duty to give reasons) Pakistan [2013] UKUT 641 (IAC) and reiterated in Joseph (permission to appeal requirements) [2022] UKUT 00218 (IAC). Citing English v Emery Reimbold & Strick Ltd. (Practice Note) [2002] EWCA Civ 605, the Upper Tribunal reiterated in Joseph at [43] that:
“[The duty to give reasons] does not mean that every factor which weighed with the Judge in [their] appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which [they] resolved them explained. […] It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to [the] decision.”
30. At [17] and again at [32], the FTT refers to the appellant’s claim that she would face serious harm from the authorities even if she would not be criminally prosecuted. The skeleton argument cited reports from the respondent’s CPIN, Human Rights Watch, DFAT and the US Department of State of harm from state actors that included “violence”, police raids on private as well as public premises, blackmail and extortion by the police, and forced participation in “rehabilitation” courses. The FTT never says what it makes of the appellant’s submissions or evidence on this issue, contenting itself at [33] with considering only the risk of criminal prosecution. Given the extent of the evidence before it and the obvious possibility that incidents of police violence, extortion and harassment could rise to the level of persecution (either individually or cumulatively), this was an issue on which the FTT was required to make a finding before dismissing the appellant’s protection appeal.
31. The evidence was more mixed with regard to the existence of gay bars. The respondent’s current CPIN states that “many gay and lesbian Malaysians prefer to be discreet” by meeting in cafes and shopping malls and contains no evidence of gay bars in Kuala Lumpur other than the Blue Boy, which was raided in 2018 but remains open. The respondent had, however, relied on an internet search on a holiday website, which she included in her appeal bundle, which listed 10 “LGBTQ-friendly” bars in Kuala Lumpur. Although other judges might not have put much weight on undated webpages aimed at holidaymakers– particularly in light of the comment in the 2020 CPIN that the gay bars in Kuala Lumpur mainly catered to tourists – it cannot be said that the FTT’s finding that there were gay bars in Malaysia was not open to it.
32. Ground Two is also made out. It is trite that an accumulation of various measures can rise to the level of persecution, even if, taken alone, any individual measure would not do so. See: Hoxha & Anor v Secretary of State for the Home Department [2005] UKHL 19 at [35] (citing the UNHCR Handbook). At [36], the FTT finds that the “generalised discrimination” faced by LGBT people in Malaysia does not amount to persecution. Reading the decision as a whole, it appears that what the FTT is referring to is the “discrimination in employment, housing and access to some government services” reported by the US Department of State and noted at [26]. There is no reference here to the ”threats, stigma and violence including sexual violence” mentioned in the 2020 CPIN and noted at [23]. If the FTT had been right to find that there was sufficient state protection against societal violence, this might have been an acceptable approach. But given that the evidence was unequivocally that state protection was not available, societal violence needed to be included in the consideration of whether the appellant was at risk of an accumulation of measures that could amount to persecution. So, too, did the risks from the state outlined above at [31] of this decision.
33. Ground Three is made out. Nowhere in her evidence did the appellant say she lived openly and without fear in Malaysia. In her asylum interview, she said that she “could not” tell her colleagues at work or any of her relatives or friends that she was a lesbian (Question 49). When asked if she had had any “problems” because of her sexual identity, she responded “No, because no one knew” (Question 50). She had not had any problems with the authorities, but she had “always worr[ied] about being arrested.” (Question 52) She had once bought flowers for her partner and people had looked at them “strangely” (Question 51), and once when they were holding hands, people had shouted at them, asking if they were sisters, demanding to see their ID, and threatening to call the police (Question 61-63). After that, they had felt “unhappy for a long while” and had not “dare[d] hold hands in public [or] even put our hands on each [other’s] shoulder.” (Question 64) She described this second incident in her appeal statement, saying that it had left her “shaken”. She also said in her appeal statement that this relationship eventually broke down partly because “it was dangerous sneaking around”, as did a subsequent relationship with another woman.
34. Nothing in the FTT’s summary of the appellant’s oral evidence suggests that she contradicted this account at the hearing, although she was found to have embellished it by saying she had been spat at. Mr Ojo urged me to read the sentence “She said that she felt discriminated against because someone would approach our [sic] if she held hands with her partner or held her shoulder” ([27]) as reflecting the appellant’s evidence that she had frequently held hands with her partner in public. I decline to do so. Whether the appellant had lived openly in Malaysia was a key issue in the appeal; indeed, the FTT relied on the finding that she had done in its conclusions dismissing both her protection and article claims (at [34]—[35] and [42]). If the FTT was relying on oral evidence that directly contradicted what the appellant had consistently said about this key issue throughout her asylum claim, it was incumbent on the FTT to say so clearly. In short, there was simply no evidence before the FTT that the appellant had lived openly and without fear.
35. The various errors outlined above infected the FTT’s findings on both the appellant’s protection claim (at [34]-[37]) and her article 8 “very significant obstacles” claim (at [42]). For these reasons, the decision of the FTT must be set aside in its entirety.
36. I have taken into account the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v SSHD [2022] EWCA Civ 1512, and the general principle that the case will be retained within the Upper Tribunal for the remaking of the decision. I consider that neither of the exceptions to this general principle set out in paragraph 7(2)(a) and (b) of the relevant Practice Statement apply in this case. There is no challenge to the fairness of the proceedings below, and the need for further fact-finding is limited by the acceptance of the appellant’s sexual identity. It is therefore appropriate for the appeal to be retained in the Upper Tribunal.
Notice of Decision

The decision of the First-tier Tribunal dated 9 September 2024 dismissing the appellant’s appeal is set aside in its entirety for remaking in the Upper Tribunal.

Directions
(1) The appeal is adjourned to be re-made in the Upper Tribunal at a face-to-face hearing, on a date to be fixed, with a time estimate of three hours.
(2) The parties are directed to write to the Upper Tribunal within 30 days of this decision being sent, confirming their position on whether this appeal is an appropriate vehicle for a country guidance case.
(3) If either party wishes to adduce any further evidence, this must be served in electronic format on the other party and the Upper Tribunal at least 10 working days before the next hearing, accompanied by an application made pursuant to rule 15(2A) of the Tribunals Procedure (Upper Tribunal) Rules 2008.
(4) If the appellant or any other witness wishes to give oral evidence, they must provide a witness statement capable of standing as evidence in chief, to be served in accordance with direction (3) above, and must state if an interpreter is required, and if so in which language.
(5) Any skeleton arguments must be served in electronic format on the other party and the Upper Tribunal at least 5 working days before the next hearing.


E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber


12 August 2025