Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-000711

First-tier Tribunal No: PA/61633/2023
LP/01617/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 1st of May 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE HARRIS

Between

PWS
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME OFFICE
Respondent

Representation:
For the appellant: Mr Briddock of Counsel
For the respondent: Mr Parvar, Senior Home Office Presenting Officer

Heard at Field House on 17 April 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity. No-one shall publish or reveal any information, including the name or address of the appellant, likely to lead members of the public to identify the appellant. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

1. The appellant appeals against the decision dated 1 August 2024 of First-tier Tribunal Judge Clarkson dismissing his appeal against the respondent’s decision dated 7 November 2023 to refuse his protection and human rights claim.
2. The First-tier Tribunal Judge did not accept the claim of the appellant to be openly gay and that he would be at real risk on return to Malaysia.
3. The appellant has raised four grounds for which permission to appeal was granted in a decision dated 7 February 2025 by Judge of the First-tier Tribunal Mulready.
4. At the hearing before me, the respondent indicated that she was not disputing the appellant’s submissions in Grounds 2 and 3 and that, as identified in these two grounds, the First-tier Judge made material errors of law meaning the First-tier Tribunal decision should be set aside and remade.
5. I consider the approach taken here by the respondent is correct.
6. As regards Ground 2, the First-tier Tribunal Judge accepted the appellant’s witness was credible. This witness gave evidence about observing behaviour and social interactions by the appellant consistent with him being an openly gay man. However, the First-tier Tribunal Judge did not give adequate reasoning for why little weight was placed on this evidence.
7. This is an error of law concerning the assessment of a central part of the appellant’s claim.
8. As regards Ground 3, I agree that, as submitted by the appellant, the First-tier Tribunal judge has failed to provide adequate reasoning, when rejecting the claim of the appellant to be openly gay, for preferring the case of the respondent that the appellant was lacking in detail in his account to that of the appellant that he had provided sufficient detail to be credible. In particular, the First-tier Tribunal does not engage adequately with the points raised by the appellant at paragraphs 7 to 17 of his skeleton argument.
9. This is an error of law again concerning a central part of the appellant’s claim.
10. It is to be noted that the First-tier Tribunal Judge did consider the issue of risk on return while treating the appellant’s claim at its highest. However, as identified in the grounds of appeal, the judge when considering country background evidence in the 2024 CPIN: sexual orientation and gender, identity or expression does not take into account the points mentioned at paragraphs 31 to 37 of the Grounds of Appeal, which concern matters throughout Malaysia including Kuala Lumpur. In these circumstances, the findings on risk made by the First-tier Tribunal Judge do not make the errors of law identified immaterial.
11. While the First-tier Tribunal judge refers to the CPIN as saying that the treatment of gay people in Malaysia does not amount to persecution, it needs to be remembered that statements at paragraph 3.1.1 of the CPIN concerning state actors and paragraph 3.3.1 concerning non-state actors are policy statements by the respondent, one of the parties to the appeal, and not an independent assessment of the country background evidence.
12. The country background evidence still has to be assessed as a whole by the judge hearing the appeal when determining whether the policy statements of the respondent are justified and whether the appellant in his particular circumstances is at real risk in Malaysia because of his sexuality.
13. Taking into account that the errors of law concern issues central to the assessment of credibility and risk on return, I am not persuaded that any of the adverse findings that have gone unchallenged by the appellant are sufficient to sustain the decision of the First-tier Tribunal as lawfully made. The errors of law identified in Grounds 2 and 3 are material and require me to set aside the decision of the First-tier Tribunal.
14. The normal course of action is for the Upper Tribunal to remake the decision even if it requires further findings of fact to be made on the evidence. However, given that fresh findings will need to be made as a whole in relation to the credibility of the claim, I agree with the joint submission of the parties that this appeal should be remitted to the First-tier Tribunal for a fresh hearing.
15. I make the final observation that it does appear the First-tier Tribunal Judge mistakenly included in the decision template passages regarding directions on the law for both Nationality and Borders Act 2022 (“NABA”) and pre-NABA type appeals. This is a pre-NABA appeal.

Notice of Decision

The decision dated 1 August 2024 contains material errors of law. I set aside that decision and direct that the appeal be remitted to the First-tier Tribunal for a fresh hearing before any judge except for Judge Clarkson.

M Harris

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

22 April 2025