Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2024-005423

First-tier Tribunal No: PA/50357/2023
LP/01546/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 26 June 2025

Before

UPPER TRIBUNAL JUDGE LODATO

Between

SMY
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Briddock, counsel instructed by Milestone solicitors
For the Respondent: Mr Tan, Senior Presenting Officer

Heard at Manchester Civil Justice Centre on 2 June 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
Introduction
1. I have decided to maintain the anonymity order originally made in these proceedings by the First-tier Tribunal because the underlying claim involves international protection issues in that the appellant claims to fear persecution or serious harm on return to Malaysia. In reaching this decision, I am mindful of the fundamental principle of open justice, but I am satisfied, taking the appellant’s case at its highest for these purposes, that the claimed grave risks outweigh the rights of the public to know of her identity.
2. This matter came before me for a remaking hearing following the decision of a panel of the Upper Tribunal (UTJ Ruddick and DUTJ Rodger) to set aside the decision of the First-tier Tribunal (‘FTT’) because it involved a material error of law. The appellant’s primary case has always been that, as a lesbian woman who wishes to live openly as such, she would be at risk of persecution in Malaysia as a member of a particular social group. The respondent has never challenged the proposition that the appellant is a lesbian or that she would wish to live openly as such.
Background
3. The broad procedural backdrop and immigration history to the appeal is not in dispute between the parties. The decision of the FTT was found to involve a material error of law because of the judge’s flawed approach to the consideration of the country background information going to objective risk on return, particularly the assessment of the respondent’s CPIN, Malaysia: sexual orientation and gender identity or expression of July 2024. At [47] of the error of law decision, the following was said about the facts which fell to be preserved from the FTT decision:
The facts of the appellant’s personal account have not been challenged at any time, and therefore the finding that the appellant is in a genuine and subsisting relationship with her wife is preserved. The appellant does not challenge the FTT’s findings that she would have access to social and financial support, accommodation and employment on return, and those findings are also preserved.
4. However, there was a significant factual change of circumstances in the interval between the error of law hearing and the remaking hearing. The appellant’s marriage, with her wife in the UK, had irretrievably broken down. So, while this marital relationship was preserved as a finding of fact by the panel which found a material error of law, this particular factual dimension of the claim fell away as featuring in the context of both the protection and Article 8 human rights grounds of appeal. The preserved FTT findings of fact going to the integrative conditions the appellant would encounter on return appear to be those set out at [43]-[48] of the FTT decision:
In her evidence the appellant confirmed that she had worked in Malaysia as an events planner prior to coming to the UK for her legal studies. She now has a law degree and has successfully completed the legal practise course. She accepted that with her skills, qualifications and work history she would be able to get employment in Malaysia.
She remains in touch with her family in Malaysia of an aunt and some cousins who she speaks to regularly. She also remains in regular contact with a circle of friends in Malaysia. All of whom (family and friends) are aware of her sexuality.
She said her grandparents home was still owned by her family and she had access to it. She accepted that if she returned to Malaysia her family would give her what she described as emergency help but that they would not be able to support her financially in the long term. Although as I have noted above she accepted that she could find a job.
In the UK the appellant and Jennifer live with the appellant’s aunt and uncle. She explained that her aunt has a hospitality business where she said on occasion she had accompanied her aunt but she denied having worked for her. She said her aunt has breast cancer and that she helps her. She said every time her aunt as [sic] an appointment at bath hospital she would go with her under the doctors would put down the appellant's name as a contact point. It was put to her that she had not provided any documentary evidence of this but the appellant said she had. It was possible she may have supplied it with her original further submissions application to the respondent as opposed to the appeal evidence bundle. Appellant counsel confirmed that there was nothing in relation to this in the appeal bundle.
The appellant accepted that neither her aunt nor the appellant had looked into external help in order to assist her aunt. The appellant accepted that her aunt lived with her partner although the appellant said he was quite old. In the statement of the aunt she makes no mention of the health of her partner (Roger). New evidence was provided in relation to the health of Roger. The appellant said that her aunt and uncle provide financial support to the appellant and Jennifer. She was asked if she had spoken to her aunt as to whether her aunt would continue to financially support her if she returned to Malaysia. She said that her aunt would maybe support her for a while. Although as I have noted above in their evidence the appellant had accepted she had access to accommodation, family who would support her for a time, emotional support from friends, and had accepted she would be able to obtain employment.
The appellant denied that she would be able to relocate to anywhere in Malaysia to express her sexuality such as KL. However on her evidence I find that she had previously visited an LGBT establishment in KL with a friend, also that she has access to accommodation and initial financial support from family, as well as social support from friends, likely financial support from her aunt and uncle in the UK, and that on her own evidence she would be able to obtain a job. All of which I find means that if necessary she would be able to relocate to for example KL.
5. At the remaking hearing, Mr Tan confirmed that he did not seek to cross-examine the appellant in view of her credibility not being in issue.
6. In preliminary dialogue with the parties, which involved consideration of the sequential analytical approach established in HJ (Iran) and HT (Cameroon) v SSHD [2011] 1 A.C. 596, the following issues were agreed to be in dispute in the appeal:
i. Does the appellant have a well-founded fear of persecution, to a reasonable degree of likelihood, on account of her sexuality.
ii. If a well-founded risk of persecution exists, could the appellant reasonably relocate to Kuala Lumpur.
iii. Would the appellant encounter very significant obstacles to integration on return to Malaysia.
7. I heard oral submissions from both parties. I address any submissions of significance in the discussion section below.
Discussion
8. To succeed in an appeal on asylum grounds, an appellant must show a well-founded fear of persecution for a Convention reason (race, religion, nationality, membership of a particular social group, political opinion). The standard of proof is a reasonable degree of likelihood, which can also be expressed as a reasonable chance or a serious possibility.
9. Of the approach to be taken by judges assessing risk to a reasonable degree of likelihood, Singh LJ said this at [52] in MAH (Egypt) v SSHD [2023] EWCA Civ 216; [2023] Imm. A.R. 713:
It is also well established that the standard required is less than a 50% chance of persecution occurring. Even a 10% chance that an applicant will face persecution for a Convention reason may satisfy the relevant test […]
This is perhaps an echo of what was said by Lord Walker in HJ (Iran), at [91] of his judgment:
As Sedley LJ said in Batayav v Secretary of State for the Home Department [2004] INLR 126 , para 38:
“If a type of car has a defect which causes one vehicle in ten to crash, most people would say that it presents a real risk to anyone who drives it, albeit crashes are not generally or consistently happening.”
Getting away from metaphor, I suppose that it may be debatable whether a gay man would be at real risk of persecution (in the Convention sense) if, on returning to his own country, he would face a one in ten risk of being prosecuted and made to pay a fine, or sent to prison for a month. But if he would face a one in ten risk of being prosecuted and sentenced to death by public hanging from a crane there could be only one answer.
10. As alluded to above, I have considered the Supreme Court decision in HJ (Iran). The approach to be applied in claims such as this was explained by Lord Rodger at [82]-[83] of his judgment:
When an applicant applies for asylum on the ground of a well-founded fear of persecution because he is gay, the tribunal must first ask itself whether it is satisfied on the evidence that he is gay, or that he would be treated as gay by potential persecutors in his country of nationality. If so, the tribunal must then ask itself whether it is satisfied on the available evidence that gay people who lived openly would be liable to persecution in the applicant's country of nationality. If so, the tribunal must go on to consider what the individual applicant would do if he were returned to that country. If the applicant would in fact live openly and thereby be exposed to a real risk of persecution, then he has a well-founded fear of persecution—even if he could avoid the risk by living “discreetly”. If, on the other hand, the tribunal concludes that the applicant would in fact live discreetly and so avoid persecution, it must go on to ask itself why he would do so. If the tribunal concludes that the applicant would choose to live discreetly simply because that was how he himself would wish to live, or because of social pressures, e g, not wanting to distress his parents or embarrass his friends, then his application should be rejected. Social pressures of that kind do not amount to persecution and the Convention does not offer protection against them. Such a person has no well-founded fear of persecution because, for reasons that have nothing to do with any fear of persecution, he himself chooses to adopt a way of life which means that he is not in fact liable to be persecuted because he is gay. If, on the other hand, the tribunal concludes that a material reason for the applicant living discreetly on his return would be a fear of the persecution which would follow if he were to live openly as a gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution. To reject his application on the ground that he could avoid the persecution by living discreetly would be to defeat the very right which the Convention exists to protect—his right to live freely and openly as a gay man without fear of persecution. By admitting him to asylum and allowing him to live freely and openly as a gay man without fear of persecution, the receiving state gives effect to that right by affording the applicant a surrogate for the protection from persecution which his country of nationality should have afforded him.
The Secretary of State should, of course, apply the same approach when considering applications of this type. Although I have, for the most part, concentrated on the position of gay men, the Secretary of State and tribunals should approach applications concerning lesbian women in the same way.
11. The authorities are clear that it is not sufficient for a claimant to show that they are a member of a particular social group and that some members of that group suffer persecution. The appellant must establish to a reasonable degree of likelihood that she is at risk of persecution for the asserted convention reason. This statement of principle was put in this way by Lord Hope at paragraph 47 of his judgment in K & Fornah v SSHD [2007] 1 AC 412:
[…] It is, of course, critical to identify what lies at the root of the threat of persecution. But it is not necessary to show that everyone else of the same race, for example, or every other member of the particular social group, is subject to the same threat. All that needs to be shown is that there is a causative link between his or her race or his or her membership of the particular social group and the threat of the persecution of which there is a well-founded fear. The fact that other members of the group are not under the same threat may be relevant to an assessment of the question whether the causative link has actually been established. […]
12. The dangers of drawing too narrowly the boundaries of a particular social group were illustrated by Lord Millett in his dissenting judgment in SSHD v R (ex parte Shah) [1999] 2 AC 629, at 663B:
[The causative link] was no doubt included because of an erroneous belief that all the members of the group must be equally liable to persecution. That is not the case. It is no answer to a claim for asylum that some members of the group may be able to escape persecution, either because they have powerful protectors or for geographical or other reasons. Such factors do not narrow the membership of the group, but go to the question whether the applicant's fear of persecution is well founded. Thus I would accept that homosexuals form a, distinct social group. In a society which subjected practising homosexuals but not non-practising homosexuals to persecution the relevant social group would still consist of homosexuals, not of the subset practising homosexuals. A non-practising homosexual would have no difficulty in establishing that he was a member of a persecuted group. His only difficulty would be in establishing that his fear of persecution was well founded, having regard to the fact that he was not a practising homosexual. This would be a matter of evidence, but given the hostility encountered by all homosexuals in such a society and the obvious problems the applicant would have in satisfying his tormentors of his own sexual abstinence, I doubt that the difficulty would be a real one.
13. With these principles in mind, I now look to the objective country information going to whether the appellant has a well-founded fear of being persecuted in Malaysia because she is a lesbian. The parties relied primarily on two sources of country information, the 2024 CPIN and the 2024 country information report on Malaysia produced by the Department of Foreign Affairs and Trade of the Australian Government (‘the 2024 DFAT report’). I have considered each report in full but wish to draw out the following key themes which appeared to me to emerge from those documents:
• The 2024 DFAT report observed at [3.128]:
While government stances on LGBTQIA+ issues apply to all people within Malaysia, the impact is more pronounced for Malay-Muslims, as expressions of LGBTQIA+ identity constitute both syariah and penal code offences.
• Following a raid in 2018, 5 men were sentenced to punishments which included imprisonment and caning by the Selango Syriah High Court for the offence of attempted sexual intercourse. At least 4 of these men were caned. The men appear to have been Muslim. In the following paragraph, a different source noted that such raids were mostly targeted at Muslim men and by state religious authorities. [8.2.2-4 and 8.2.6 of the CPIN]
• Police and religious authorities occasionally act in unison in conducting raids such as that on the BlueBoy bar in Kuala Lumpur in 2018 where 20 men were arrested and sentenced to Islamic counselling. More recently, in October 2022, the RMP and the Federal Territories Islamic Religious Department raided a Halloween event attended by members of the LGBT community and arrested at least 20 people [8.2.7 of the 2024 CPIN and 3.130 of the 2024 DFAT report]
• Violence against members of the LGBT community was commonplace and was at times condoned or even perpetrated by the police. [8.2.8 of the CPIN citing a 2023 USSD report]
• Political figures of national prominence have applauded official action to quell LGBT activity and spoken of a desire to influence the wider community. [8.1.1 and 8.1.4 of the CPIN].
• The Prime Minister emphasised in September 2023 that Malaysia would never recognise LGBT rights, but that the government did not condone “excessive action or harassment”. In January 2023, he stressed that there would not be recognition of such identity and behaviour under his stewardship. [3.1.8 of the CPIN and 3.128 of the 2024 DFAT report]
• There were also official statements pledging to enforce constitutional anti-discrimination laws. [8.1.5 of the CPIN]
• Specific information was recorded about the treatment of lesbians at 8.3 of the CPIN:
The 2021 DFAT Country Information Report Malaysia, stated: ‘In September 2018, a syariah court in Terengganu state sentenced two women to six strokes of the cane and a fine of MYR3,300 (AUD 1,045) [£55075] after convicting them of allegedly attempting to have sexual intercourse. The caning, which was carried out in a courtroom in front of 100 witnesses, was reportedly the first such sentence to be ordered in relation to a LGBTI-related case since 2010.
In relation to the same case, a HRW report from August 2022 noted ‘The court carried out the caning on September 3 [2018], in public, as one Terengganu official told the press, “to serve as a lesson to society.”
In sources consulted (see Bibliography) CPIT could find no recent information on the treatment of lesbians specifically.
• The 2024 DFAT report said this about lesbians, at 3.138:
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.
• Reliable statistics on the use of laws which outlaw homosexual or lesbian sexual activity was difficult to come by. However, there were official, but somewhat opaque, figures in relation to cases of “unnatural sex” which might include homosexual or lesbian sexual activity. The breakdown of such cases in Pahang, the appellant’s home area, were 12 in 2020, 14 in 2021 and 16 in 2022 which showed a steady rise over time albeit from a low absolute starting point. A decreasing trend could be seen in W.P. Kuala Lumpur with 29 cases in 2020, 22 in 2021 and 10 in 2022 [8.5.1-5 of the CPIN]
• There was a strong social taboo against those in the LGBT community, but Kuala Lumpur was more “permissive” than elsewhere. Online harassment of the LGBT community was widespread with a 2021 study finding that some 90% of the community had fallen victim to this kind of hate speech. The OCHCR recorded concerns that such conduct had spread to the physical world of Malaysian society [9.1.1-2 and 9.2.8-10 of the CPIN and 3.126 of the 2024 DFAT report]
• In the assessment section of the CPIN, the respondent accepted that the LGBT community were subject to discrimination which fell short of persecution. The penal code offence of “carnal intercourse against the order of nature” includes same-sex sexual activity and carries a maximum penalty of 20 years imprisonment and/or whipping. Generally, prosecution under civil laws for homosexual or lesbian activity was unlikely but the position was different for LGBT Muslims who were at risk of persecution. It was noted that there were state sponsored religious conversion centres with some reports of forced attendance. Kuala Lumpur was known to have gay bars which were permitted to operate without interference although there have been raids in the past such as the 2018 police raid on the BlueBoy nightclub in 2018. Kuala Lumpur would generally function as a reasonable internal relocation option.
14. The first issue I must address is the second HJ (Iran) consideration because there is no dispute between the parties that the appellant is a lesbian and wants to live openly in accordance with her sexual identity as she has done in the UK where she married a woman and shared a home with her for several years before their relationship broke down. The critical question is whether she would not live openly anywhere in Malaysia at least partly because of a well-founded fear of persecution for being a lesbian. This issue turns on the assessment of risk of persecution with a causal connection to her membership of a particular social group.
15. Beyond the appellant’s stated and unchallenged fears that she would be subject to persecution on return because she is a lesbian, there was little in the way of subjective evidence to support that this fear was well-founded. This is not a case where the appellant pointed to a previous occasion where she had been persecuted on account of her sexuality. The closest she came was in referring to an incident when she was a child at school. Mr Briddock rightly did not suggest that this unpleasant incident, of being admonished for the way she dressed, could amount to a previous episode of persecution. I have also noted the respondent’s observation that the appellant voluntarily returned to Malaysia after she overstayed her visa and before she made this protection claim on returning to the UK approximately a year later, in February 2020. To reach a judgement on the risk question I must look to the objective country information I have summarised above.
16. The first point to note is that the respondent has never suggested that the appellant could approach the Malaysian authorities for protection if she were targeted in the community because of her sexuality. This tends to illuminate the official attitude to the LGBT community which can only be described as, at best, hostile. Public statements by high-profile national political figures hardly inspire confidence that there are safe places for Malaysian lesbians or that there will be any sanctuary from a pervasive culture of disapproval rising to harassment such that many are forced to live a more discreet lifestyle than they would like. This sense of danger from state actors is only underscored by the federal and state laws which criminalise homosexual and lesbian sexual activity with maximum penalties measured in decades or corporal punishment as so vividly recorded in the relatively recent report of two women who were publicly lashed in front of a crowd.
17. The respondent’s core argument is that the appellant need not be concerned about these prosecutions and police raids because they are focussed on Muslim members of the LGBT community. It seems to me that I should exercise considerable caution before forming such an optimistic impression of the available, but distinctly limited and opaque data. While Mr Briddock could not point me to a single reported example of a non-Muslim member of the LGBT community who had been targeted by the authorities with prosecution, I must keep in mind that an absence of evidence is not evidence of absence. The reality is that we simply cannot tell from the data that only Muslim members of the LGBT community have been prosecuted under these draconian laws. I am prepared to accept that Muslim members of the LGBT community are more likely to be persecuted but this does not equate to non-Muslims lesbians not being at risk to the required standard of a reasonable degree of likelihood, particular when I bear in mind the observations of Singh LJ in MAH (Egypt) and Lord Walker in HJ (Iran) which gives a sense of the kind of real possibilities which are to be considered. I also accept Mr Briddock’s broader conceptual argument that the mere existence of such laws are likely to have a chilling effect on open LGBT behaviours such that lesbians are unlikely to advertise themselves to the authorities who have within their armoury crimes which carry sentences including lengthy prison sentences and being whipped. On what is known, and it cannot be regarded as a complete picture, there is enough to establish to a reasonable degree of likelihood that the appellant has a well-founded fear of persecution for the convention reason of her sexuality.
18. Turning to the second issue, internal relocation to Kuala Lumpur is no answer to the risk the appellant faces and it would not be reasonable to expect her to move there. I was unimpressed by the respondent’s reliance, in the reasons for refusal letter, on the anecdotes of a single musician who spoke warmly of his positive experience living as a homosexual man in Kuala Lumpur. I am more persuaded by the history, albeit sporadic, of raids on gay bars and events in the city. The laws which criminalise homosexual and lesbian sexual activity apply across Malaysia. There is no official sanctuary in Kuala Lumpur, or any kind of official amnesty. The appellant would be dependent on the hope that the authorities will take a sanguine attitude to the criminal laws they have been known to enforce in the past. On the country background information I have considered, it struck me as fanciful that the appellant could live openly as a lesbian woman in Kuala Lumpur. She would undoubtedly be more at risk in other parts of the country, but I find that she would also be sufficiently at risk to a reasonable degree of likelihood in Kuala Lumpur.
19. It is unnecessary to consider the third issue in any detail because there is no longer any question of the appellant being returned to Malaysia to face any putative very significant obstacles to integration.
Notice of Decision
On remaking, I allow the appeal on Refugee Convention grounds.

P Lodato

Judge of the Upper Tribunal
Immigration and Asylum Chamber

23 June 2025