Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001361
First-tier Tribunal No: PA/61322/2023
LP/04851/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 18 June 2026

Before
UPPER TRIBUNAL JUDGE NORTON-TAYLOR

Between
DD
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the appellant: Mr A Pipe, Counsel instructed by TRP Solicitors
For the respondent: Mr J Nappey, Senior Presenting Officer

Heard at Field House on 2 June 2026

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.

RE-MAKING DECISION AND REASONS

Introduction
1. This is the re-making of the decision in the appellant’s appeal against the respondent’s refusal of his protection and human rights claims. This follows the previous error of law decision made by a panel of the Upper Tribunal (Upper Tribunal Judge Norton-Taylor and Deputy Upper Tribunal Judge Richards), sent out on 8 January 2026, which found that the First-tier Tribunal had committed a number of material errors of law when dismissing the appellant’s appeal at first-instance. The error of law decision is contained in an annex to this re-making decision.

2. In setting aside the First-tier Tribunal’s decision, the panel expressly preserved the finding of fact that the appellant is a gay man: [21] of the First-tier Tribunal’s decision and [35] of the error of law decision. The evidential context of that finding is that the appellant has been living openly as a gay man whilst in the United Kingdom. There is no dispute by the respondent about this.

The issues
3. The protection-related factual and legal questions to be determined are therefore:

(a) As an openly gay man, is the appellant at risk on return to his home area, Perak State?

(b) If he is, would he also be at risk on return to other parts of Malaysia, specifically Kuala Lumpur (that being the place of potential internal relocation relied on by the respondent)?

(c) If there is no risk to him in other parts of the country, could he reasonably relocate to Kuala Lumpur?

4. Article 8 is also relied on by the appellant and the question to be resolved is whether there would be very significant obstacles to her re-integrating into Malaysian society.

5. As confirmed by Mr Pipe at the outset of the hearing, the appellant does not rely on family life under Article 8 in respect of his claim relationship with Mr C.

The evidence
6. I have before me a consolidated bundle provided by the appellant, indexed and paginated 1-587. Amongst other items, this includes an expert report from Ms Rayna Rusenko, PhD, dated 6 April 2026 and the respondent’s current CPIN, “Malaysia: Sexual orientation and gender identity or expression”, version 2.0, published in July 2024.

7. The respondent made an application to rely on new evidence under rule 15(2A) of the Tribunal procedure rules. This evidence related to the appellant’s claimed partner, Mr C. The evidence was taken from the respondent’s ATLAS database and purported to show that Mr C had sponsored another individual’s settlement application in August 2025.

8. Following preliminary discussions, during which Mr Pipe confirmed that there was no family life claim in this appeal, I decided to admit the new evidence. Although it has not played any material part in the re-making stage of this appeal, the evidence is now on the record, as it were.

9. The appellant attended the hearing and gave evidence with the assistance of a Mandarin interpreter. He adopted his two witness statements. He confirmed that he had never been physically attacked whilst in Malaysia, but feared discrimination and what people might do to him if he was removed.

The parties’ submissions
10. Mr Nappey relied on the reasons for refusal letter, the respondent’s review, and the skeleton argument drafted by another Senior Presenting Officer. He maintained the criticisms of the expert report set out in the skeleton argument. He acknowledged the background evidence as to risk in the appellant’s home area, but submitted that it was not sufficient to meet the lower standard. If there was a risk in the home area, Mr Nappey accepted that there would not be state protection.

11. As to Kuala Lumpur, it was submitted that the capital was better than elsewhere in the country and that there had been positive developments in official and societal attitudes. I was referred to several passages from the CPIN, together with other items of country information, which, submitted Mr Nappey, showed that there would not be a reasonable likelihood of risk to the appellant. Absent such risk, it would not be unreasonable for the appellant to relocate.

12. Mr Pipe relied on his skeleton argument. He submitted that the appellant’s appeal should succeed based on the country information alone, but that the expert report was in any event deserving of real weight. It was clear that the appellant would be at risk in his home area of Perak State. In terms of Kuala Lumpur, I was referred to several passages from the CPIN and other background materials. The state was openly hostile towards the gay community and there was very significant societal discrimination. There was a risk in the capital, but even if not, it would be unreasonable to internally relocate.

13. Mr Pipe contested the respondent’s criticisms of the expert report. She was suitably qualified, adopted an appropriate methodology, and had not simply acted as an advocate for the appellant.

14. I reserved my decision.

Findings and conclusions
15. In making findings of fact and reaching my conclusions, I have considered the evidence as a whole and asked myself the question of whether it is reasonably likely that the appellant would be at risk on return. In respect of internal relocation, I have considered all relevant factors, both subjective and objective in order to undertake a broad assessment of whether it would be unreasonable for the appellant to re-establish himself in Kuala Lumpur.

16. I first address a preliminary point. There was some dispute between the parties as to whether the respondent had made a concession in the reasons for refusal letter. It certainly appeared that she had conceded that if the appellant was at risk, he would be unable to obtain sufficient state protection. The respondent’s skeleton argument denies the existence of the concession, asserting that because the well-foundedness of the appellant’s fear was not accepted, this inevitably indicated that protection was available. One can perhaps argue about whether the assessment of well-foundedness incorporates state protection or whether such protection is a separate stage in the overall assessment. However, in light of the respondent subsequent review and Mr Pipe’s pragmatic view expressed during plenary discussions, I have approached this appeal on the basis that there is no effective concession.

17. This case does not involve any material factual controversies. The appellant is a gay man who has lived openly as such in the United Kingdom for many years now; he arrived here in 2007. It is common ground that the appellant is Buddhist. His home area is Perak State in the north-west of Malaysia. He was never physically attacked. Whilst living in that country, he concealed his sexuality out of a fear of his family’s reaction and that of the wider community and the state authorities. Mr Nappey accepted the evidential basis for why, if returned, the appellant might attempt to conceal his sexuality: it would be out of a fear of the consequences if he did not do so.

18. The assessment which follows is predicated on the approach set out in HJ (Iran) v SSHD [2010] UKSC 31, with particular reference to the step-by-step test elucidated at [35] and [82]. The factual questions relating to the appellant sexuality and what she would wish to do on return, but for a fear of harm, are not now in dispute.

19. An additional an important point arises from the Supreme Court’s judgment, namely the extent of the ability to live openly which is protected by the Refugee Convention. In this regard, I have directed myself to [76]-[78] of Lord Rodger’s judgment:

“76. The New Zealand Refugee Status Appeals Authority observed in Re GJ [1998] (1995) INLR 387, 420 that "sexual orientation is either an innate or unchangeable characteristic or a characteristic so fundamental to identity or human dignity that it ought not be required to be changed" (emphasis in the original). So, starting from that position, the Convention offers protection to gay and lesbian people – and, I would add, bisexuals and everyone else on a broad spectrum of sexual behaviour - because they are entitled to have the same freedom from fear of persecution as their straight counterparts. No-one would proceed on the basis that a straight man or woman could find it reasonably tolerable to conceal his or her sexual identity indefinitely to avoid suffering persecution. Nor would anyone proceed on the basis that a man or woman could find it reasonably tolerable to conceal his or her race indefinitely to avoid suffering persecution. Such an assumption about gay men and lesbian women is equally unacceptable. Most significantly, it is unacceptable as being inconsistent with the underlying purpose of the Convention since it involves the applicant denying or hiding precisely the innate characteristic which forms the basis of his claim of persecution: Atta Fosu v Canada (Minister of Citizenship and Immigration) 2008 FC 1135, para 17, per Zinn J.

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. As Gummow and Hayne JJ pointed out in Appellant S395/2002 v Minister for Immigration (2003) 216 CLR 473, 500-501, para 81:
"Sexual identity is not to be understood in this context as confined to engaging in particular sexual acts or, indeed, to any particular forms of physical conduct. It may, and often will, extend to many aspects of human relationships and activity. That two individuals engage in sexual acts in private (and in that sense 'discreetly') may say nothing about how those individuals would choose to live other aspects of their lives that are related to, or informed by, their sexuality"

In short, what is protected is the applicant's right to live freely and openly as a gay man. That involves a wide spectrum of conduct, going well beyond conduct designed to attract sexual partners and maintain relationships with them. To illustrate the point with trivial stereotypical examples from British society: just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates. Mutatis mutandis – and in many cases the adaptations would obviously be great – the same must apply to other societies. In other words, 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.”

20. These passages clearly identify the factual matrix arising in this case. The appellant has never professed to be a gay rights campaigner or someone who has a particular desire to attend gay clubs and suchlike. What he has done whilst in this country, and would wish to do if returned to Malaysia, is simply to live as an openly gay man in the way he wishes to go about his daily business. As I intimated during the course of argument, great care must be taken not to inadvertently introduce stereotypes in terms of any expected behaviour or activities.

21. With the above in mind, I now turn to assess risk. In doing so, I have had regard to all of the specific passages of the CPIN and other country information to which I have been referred and the fact that not every one of them is expressly addressed is not an indication of oversight on my part.

Risk in home area
22. The Executive Summary of the 2024 CPIN states that:

“LGBI persons face harassment, arbitrary arrest and detention and police sometimes perpetrate and condone violence against individuals including in custody.

In general, whilst LGBI persons face official discrimination, treatment by state actors is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution.

LGBTI persons face discrimination, stigma, threats and violence… depending on their socio economic class, religion, place of residence, and how they present themselves.

In general, whilst LGBI persons face some societal discrimination this treatment is not sufficiently serious by its nature and/or repetition, or by accumulation of various measures which is sufficiently severe to amount to persecution.”

23. The penal code in effect prohibits same-sex sexual activity: 3.1.6. I accept that the risk of prosecution by the authorities as low.

24. I have taken account of all of the CPIN references contained within [15] of Mr Pipe’s skeleton argument. In summary, the combination of the respondent’s own assessment of the country evidence and that evidence itself demonstrates significant adverse and hostile attitudes towards the gay community. This is manifested by threats of an actual harm committed by state authorities and/or society in general. Such actions are not limited to Muslims, although they are likely to face greater problems than those of other faiths. As to state protection, 4.1.1-4.1.3 states as follows:

“4.1.1 In general, the state is able but is not willing to offer effective protection. However, each case must be considered on its facts.

4.1.2 State authorities have been responsible for harassment, discrimination, and violence, towards LGBTI persons with reports of physical and sexual assaults by police. However, there is also some evidence of the authorities prosecuting the perpetrators of violence against the LGBTI community, although in many instances the police do not consider hate crime as a motive (see State attitudes and treatment).

4.1.3 Despite state actors insisting that the fundamental rights of LGBTI people are protected under the Federal Constitution, are treated equally, and have access to government services and assistance without discrimination, same-sex sexual activity remains illegal. LGBTI persons are arrested for offences related to their gender identity and/or expression, which particularly affect trans persons and Muslims. It would therefore be unreasonable to expect a person identifying as LGBTI to seek protection from the authorities (see State attitudes and treatment).”

25. In respect of the position in Perak State, I have taken account of 3.3.5 of the Executive Summary of the CPIN and the reference to examples of “violence, intimidation, and domestic abuse” in that region.

26. I have taken account of the country information cited at 7.2.4, 8.4.4, 8.5.5, 9.2.4, 10.2.1,, 10.2.2, 11.3.4 of the CPIN. This indicates that prosecutions against gay men are rare, but that violence was experienced by “trans women, queer men, and queer women…” and that cases were reported of “Hate crimes and murder… Harassment and intimidation and violence…” Whilst there appeared to be some non-state initiatives seeking to provide health services and other relief to the gay community, the “general environment that stigmatises LGBTQ persons does not allow LGBTQ issues to be openly talked about. In turn, it acts as a barrier for LGBTQ persons to meet each other to socialise.”

27. I take account of the fact that the appellant would not be at risk in relation to Sharia law because he is not Muslim.

28. I acknowledge that the appellant is not the victim of past persecution as result of the sexuality. However, I bear in mind that he had deliberately concealed his sexuality in order to avoid problems. I also bear in mind the unchallenged evidence that the appellant would wish to live openly on return, but may not do so because of a fear of the consequences.

29. I reject the submission made in the respondent skeleton argument that references in some of the evidence to “queer individuals” necessarily excludes gay men. It is unclear to me what, in reality, the distinction is. On my reading of the evidence there is nothing to indicate that “queer individuals” or “queer men” are deemed to constitute a distinct group from gay individuals or gay men.

30. Having considered all of the above in the context of the lower standard of proof, I conclude that:

(a) If the appellant were to live openly as a gay man in his home area, there is a reasonable likelihood that he would be at risk of persecution by state authorities and would not have recourse to sufficient state protection; and/or

(b) there is a reasonable likelihood that he would be at risk of persecution by non-state actors against which he would not obtain sufficient state protection because of an unwillingness on the part of the authorities to provide it.

Risk in Kuala Lumpur
31. The majority of the country evidence referred to in the CPIN appears to apply to Malaysia as a whole and I reiterate everything said in the previous section of this decision as it relates to the general situation the country pertaining to gay men who would wish to live openly. This includes official discrimination, hostile government rhetoric, and societal attitudes. I note in particular what is said at paragraph 8.2.8 of the CPIN: the 2023 USSD report refers to reports that violence against LGBTI people was “common, and that police at times perpetrated and condone such violence, including against individuals in custody.”

32. I have taken into account all of the references cited at [27] of the respondent’s skeleton argument, together with Mr Nappey’s oral submissions.

33. Aspects of the country information suggest that Kuala Lumpur is a more tolerant environment for the LGBTI community and that city has been the focus of the respondent’s case against the appellant. I accept that the capital is, in general terms, less conservative than other areas of the country. Whilst this is relevant, it does not of itself demonstrate the absence of a reasonable likelihood of risk: they can of course be varying degrees of risk extending beyond that of a reasonable likelihood.

34. There is a human rights commission in Malaysia (SUHAKAM). In principle, that may provide some form of a complaint mechanism. However, its investigative powers and resources appear to be somewhat limited. Beyond that, it is difficult to see how this mechanism could assist an individual in avoiding persecution in the first place, or from providing enough confidence for a gay man to live openly rather than concealing his sexuality.

35. The respondent points to the existence of at least one gay club in Kuala Lumpur (the Blue Boy) which, it is submitted, goes to show that there is an active gay scene. The implication here is that the authorities permit these activities to continue, thereby demonstrating a degree of tolerance. The difficulty with this particular contention is that the country information demonstrates that there have been more raids on such locations and that some of the bars have had to change location “quite often” because of the risks involved: 2020 and 2024 CPINs. In my view, the reality is somewhat less sanguine that might appear at first glance.

36. Further, and as mentioned earlier, the assessment of risk cannot in any event be founded solely on the ability or otherwise of the appellant to go to any particular club or bar. After all, he may not ever wish to do so, but nonetheless would wish to live as an openly gay man and go about his daily business without fear of the authorities and/or society in general.

37. In addition to the CPIN evidence, I have taken account of the additional country information to which I have been referred to by the parties. In particular, pages 308-321 of the appellant’s bundle contains recent evidence indicating that the position of the gay community throughout Malaysia remains decidedly problematic. I note the example of a police raid in November 2025 on a wellness centre used by the gay community and the arrest of 200 attendees.

38. Having weighed up all of the country information, I conclude that:

(a) If the appellant were to live openly as a gay man in Kuala Lumpur, there is a reasonable likelihood that he would be at risk of outright persecution and Article 3 ill-treatment by state authorities and would not have recourse to sufficient state protection; and/or

(b) There is a reasonable likelihood that he would be at risk of persecution by non-state actors in Kuala Lumpur against which he would not obtain sufficient state protection because of an unwillingness on the part of the authorities to provide it.

Internal relocation
39. If I was wrong in my conclusion on the risk in Kuala Lumpur, I conclude that it would in any event be unreasonable for the appellant to relocate there.

40. My assessment of internal relocation is based on the same country evidence as referred to previously, albeit on the premise that it does not demonstrate risk of persecution and/or Article 3 ill-treatment.

41. All other things being equal, it is likely that the appellant would be able to find employment and live a reasonable life in the capital. However, all other things are, in my judgment, decidedly not equal. The appellant would either live as an openly gay man, or would have to conceal that wish in order to avoid problems.

42. If all of the adverse matters to which I previously referred do not reach threshold of persecution and/or serious harm under Article 3, on a cumulative basis they do go to demonstrate very significant barriers to the appellant’s ability to live a reasonable life. In the scenario that he would in fact live openly, the adverse matters would impede his ability to: find employment (10.3.2 of the CPIN); obtain healthcare (10.2.5-10.2.6 of the CPIN); access certain services including potentially housing; enter into and maintain openly gay relationships; and live day-to-day without experiencing regular abuse/harassment/prejudice. In all the circumstances, this would be unreasonable.

43. In the scenario that the appellant would have to conceal his identity in order to avoid these problems, the type of life he would have to endure would be unreasonable by virtue of the concealment itself.

The expert report
44. My primary conclusions on risk and internal relocation are based on the CPIN and other country evidence. However, it is important to address the expert report as well. If material weight can be placed on it, it adds significant strength to the appellant’s case.

45. I have carefully considered the criticisms made by the respondent of the expert report, together with the relevant authorities pertaining to expert evidence in general.

46. The first criticism is that Ms Rusenko does not have the expertise to provide expert evidence on LGBT issues in Malaysia. For the following reasons, I reject this criticism.

47. First, Ms Rusenko is in fact listed in the expert’s directory on the Electronic Immigration Network, which is a well-respected source. Under the “Expertise” section is, amongst a number of other areas, LGBTQ issues. The respondent might have considered referring to the source before making the criticism.

48. In any event, the fact that Ms Rusenko’s CV highlights her specific expertise in homelessness issues does not preclude expertise in other areas: she confirms that her specialisation is in “law and public policy…. particularly as it relates to homelessness”. At 1.1.5 of the report she refers to research on “past and present policy systems… social and economic exclusion, and protections offered by governmental and non-governmental organisations, especially as relates to homelessness and populations vulnerable to homelessness in Malaysia.” At 1.1.6, she refers to having conducted research on “social welfare” and “policing”. In my judgment, the fact that she has a particular interest in homelessness does not justify placing little or no weight on a report which addresses LGBT issues.

49. The second criticism relates to methodology. It is said that Ms Rusenko “does not appear to have consulted any primary sources” and that the report “shows little to no evaluation of varying sources”. Again, I disagree. The author dedicates a section to her methodologies in which she:

(a) confirms the provision of all relevant materials to her in advance of preparing the report;

(b) confirms that she had referred to the EASO Country of Origin Information Report Methodology;

(c) confirms a literature review in March 2026 to ensure report contained the most recent to reliable sources;

(d) confirms that the report was based on a review of academic literature, media reports, institutional publications, and other selected public sources of information relating to LGBT persons in Malaysia;

(e) confirms that she also relied on her own “extensive regional experience as a researcher”;

(f) confirms that all the sources used were referenced and that all information presented had been cross-checked unless otherwise stated.

50. The respondent has not alleged that Ms Rusenko has acted in bad faith, has misled the Tribunal, or that any of the assertions made by her factually inaccurate. The respondent did not indicate that she wished to either cross-examine Ms Rusenko or put written questions to her in advance of the hearing.

51. As regards primary sources, it is difficult to understand what the respondent’s point is. The report does not purport to be based on, for example, interviews (which would be a primary source). The report is absolutely clear that the sources relied on are academic literature, media reports, institutional publications, and other public sources of information. There is nothing untoward in this.

52. The particular example in [29c] of the respondent’s skeleton argument relied on as a criticism of the expert’s approach does not in my view stand up to scrutiny. The evidence cited by Ms Rusenko is accurately recorded. The additional aspect of the same evidence says nothing more than confirming the Prime Minister’s rejection of LGBT rights and that he also did not condone “excessive action or harassment” of that community. If the criticism is that the expert should have included the latter point, it has no substance. The respondent’s own risk assessment confirms the anti-LGBT rhetoric emanating from the government. Further, not condoning “excessive” action or harassment cannot begin to suggest that there is some level of acceptable (non-excessive) actions or harassment which can be taken against the LGBT community.

53. The third criticism is that Ms Rusenko has in effect acted as an advocate for the appellant. I reject that criticism. It ignores the very clear declaration made by Ms Rusenko at the outset of the report, confirming her overriding duty to the Tribunal and having regard to relevant authorities and the Practice Direction. It also fails to have regard to the contents of the report as a whole.

54. The matters included in [29d] of the respondent’s skeleton arguments are minor and represent nothing more than disagreements. In addition, the reference to the June 2020 CPIN as an example of the expert’s erroneous approach is misconceived. It is clear that the previous CPIN was referred to because Ms Rusenko was specifically asked in the letter of instruction to address the reasons for refusal letter. That letter itself referred to the 2020 CPIN. So, the expert was only doing what she had been asked to do.

55. The fourth criticism made by the respondent is that “not all opinions are referenced”. This is entirely misconceived. First, the report is in fact very well referenced. Second, a suitably qualified expert is entitled to give opinion evidence based on their experience and overall understanding of the issue in question.

56. The final criticism is that the report has not engaged with the current CPIN. With respect, that is simply not the case. The CPIN is listed as one of the documents specifically considered by Ms Rusenko. It is referred to in sections 5-8 of the report. The criticism also appears to lose sight of the fact that Ms Rusenko was specifically instructed to consider the situation in Malaysia since July 2024. This is what she has done.

57. In light of the above, I conclude that Ms Rusenko is suitably qualified to provide expert evidence on the position of LGBT people in Malaysia. I conclude that her methodology is appropriate and that her report is well-sourced and properly referenced. I reject criticism that she has acted as nothing more than an advocate for the appellant. I conclude that I should place significant weight on this expert evidence.

58. The particular relevance of the expert evidence is that it quite clearly demonstrates that the position for the LGBT community in Malaysia has deteriorated since the July 2024 CPIN. I do not propose to set out the detailed analysis carried out by Ms Rusenko; this can be found in section 8 of the report. Instead, I quote the conclusions stated at 9.2-9.5:

“9.2 Current conditions for LGBT people are increasingly hostile and unsafe. Based on the available country evidence, it is likely that [the appellant] could experience arrest, detention or ill treatment from police and/or other state actors in Malaysia based on his sexuality, including in light of his status as a Buddhist.

9.3 It is likely that [the appellant] could experience discrimination, stigma, harassment, violence, psychological distress and/or reputational and economic harm from the local populace in either Perak or KL, potentially leading to employment and/or housing insecurity. Such risks arise with regard to both online and offline activity. Based on the available country evidence, if [the appellant] were to approach civil or public servants with troubles related to any of the aforementioned risks, it would be highly unlikely that he could receive effective protection in either Perak or KL.

9.4 If he were to attempt to internally relocate to KL or elsewhere in Malaysia as an openly gay man, [the appellant] would likely face difficulties in procuring secure employment, accommodation, healthcare and social support and belonging in his new location. In addition, it is likely that [the appellant] could still experience arrest, detention or ill treatment from police and/or other state actors in KL based on his sexuality.

9.5 Additionally, social, political and legal conditions impacting the security of LGBT persons in Malaysia have deteriorated since the 2024 CPIN.”

59. The expert evidence strongly reinforces my primary conclusions, as stated previously.

Summary of the protection claim
60. For the reasons set out above, the appellant is a refugee and a person whose removal from the United Kingdom would expose him to a real risk of treatment contrary to Article 3.

Article 8: paragraph PL 5.1 of Appendix Private Life to the Immigration Rules
61. Essentially for the reasons already stated, there would be very significant obstacles to the appellant re-integrating into Malaysian society, whether he lived openly or had to conceal his sexuality.

Anonymity
62. I maintain the anonymity direction previously made and on the same basis, namely that this appeal concerns a claim for international protection.

Notice of Decision
The making of the decision of the First-tier Tribunal did involve the making of an error on a point of law and that decision has been set aside.

The decision in this appeal is re-made and the appeal is allowed on protection and Article 8 grounds.

H Norton-Taylor
Judge of the Upper Tribunal
Immigration and Asylum Chamber
Dated: 5 June 2026

ANNEX: THE ERROR OF LAW DECISION

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001361
First-tier Tribunal No: PA/61322/2023 and
LP/04851/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE NORTON-TAYLOR
DEPUTY UPPER TRIBUNAL JUDGE RICHARDS

Between

DD
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms A Patyna, Counsel
For the Respondent: Ms A Ahmed, Senior Presenting Officer

Heard at Field House on 5 December 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant and any member of his family 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 or any member of his family. Failure to comply with this order could amount to a contempt of court.

DECISION AND REASONS

Introduction and procedural history

1. This is an appeal by DD (“the Appellant”) with permission against a decision signed on 1 January 2025 made by a First-tier Tribunal Judge (“the judge”) to dismiss the Appellant’s appeal against the decision of the Secretary of State for the Home Department (“the Respondent”) on 7 November 2023 to refuse the Appellant’s application for asylum which was made on 28 January 2019.

2. We note that an anonymity order was made by the First-tier Tribunal, and that the Appellant has made an asylum application and we continue the anonymity order in this case. In doing so we have had regard to Guidance Note 2022 No.2: Anonymity Orders and Hearings in Private and Kambadzi v SSHD [2011] UKSC 23. We have considered the strong public interest in open justice. Nonetheless, in this case it is outweighed by the United Kingdom’s obligations towards applicants for international protection.

3. The Appellant is a Malaysian citizen who entered the UK on a visit visa in 2007. He remained in the UK on the expiry of the visa and claims to have remained in the country since then. The Appellant claims that he is gay and would be at risk if he was returned to Malaysia.

4. The Respondent refused his claim on all grounds. They did not accept that the Appellant was gay, and decided that even with the Appellant’s case taken at its highest he could return to Malaysia and relocate to Kuala Lumpur or another large city. The Respondent did accept that the Appellant is not Muslim. (Not being Muslim is relevant as Sharia law in Malaysia applies differently to people who are or are not Muslim.)

5. At the First-tier Tribunal hearing, the Appellant was legally represented and gave evidence through an interpreter, and a Presenting Officer attended for the Respondent.

6. The judge found at [21] that the Appellant is gay.

7. The judge did not make an explicit finding on whether or not the Appellant was at risk in the region he is from, but did go on to find that the Appellant would be able to relocate to a larger city including Kuala Lumpur, and that it would be reasonable for him to do so.

8. The judge then found that the Appellant is not in need of humanitarian protection, that “there is nothing in the evidence to show that the Appellant’s circumstances attract article 8” and there was no basis for a grant of leave outside the Immigration Rules.

9. The key paragraphs from the judgement that is being appealed are as follows:

“21. I bear in mind the lower standard of proof that applies and the guidance. Taking the evidence overall, including that from the Appellant’s stated former partner, I accept that on the standard of proof that applies the Appellant has shown that he is homosexual.

22. The issue then is whether he can safely return to Malaysia. The guidance from the Foreign Office referred to above does not state that travel to Malaysia for homosexuals is out of the question and it refers to openly gay support organisations that can be contacted for support and information. Open displays of affection are discouraged but foreigners would be more noticeable anyway. The Shaira law does not apply to the Appellant as he is not a Muslim.

23. From the background evidence it is clear that there is discrimination in Malaysian society against homosexuals and that this operates on a societal and family level. The Appellant's evidence that he has not told his father or other family is consistent with that. Although the situation in the UK is more accepting that is by no means universal and issues around “coming out” persist in all sections of society.

24. Also the practical situation on the ground is relevant. Countries such as Russia and Zimbabwe have legal protection for political opinion and free speech, the practice in both is very different. With regard to the practice in Malaysia the reference by the Foreign Office to support organisations operating openly would suggest that, in larger cities, toleration has improved considerably. Many of the articles referred to are now several years old and some pre-date the pandemic.

25. While I appreciate that the position in Malaysia is not as forward as that in the UK I do not accept that the Appellant would be unable to relocate to a larger city, including Kuala Lumpur, and he could engage openly with the LGBT community and organisations that exist there. He may well face discrimination in doing so but that would not be a level that would place the UK in breach of its international obligations. The Appellant is not in need of international protection on this basis.

26. Appellant has spent a number of years in the UK, mostly illegally, and has shown that he is adaptable and resilient in doing so. Having been born and brought up in Malaysia the Appellant would be returning to the country he is most familiar with and, as a citizen, would have the handicap of being there illegally, something that has not obviously hampered him in the UK.

27. The finding that the Appellant can relocate to a large city within Malaysia and that it would be reasonable for him to do so informs the position with regard to whether there would be very significant obstacles to his doing so. While the Appellant has formed a social life in the UK he does not have family life here and his private life, formed when here illegally, attracts little weight. There is nothing in the evidence to show that the Appellant's circumstances attract article 8 or that there is any basis for a grant of leave outside the Immigration Rules.”

10. The Appellant applied for permission to appeal this decision and on 20 March 2025, a different First-tier Tribunal Judge from the original decision-maker refused to permission to appeal to the Upper Tribunal.

11. The Appellant renewed their application for permission to appeal to the Upper Tribunal on the Grounds described below, and on 17 September 2025 UTJ Ruddick granted permission on all grounds.

12. The case came before us on 5 December 2025 and we considered the bundle of 306 pages and heard submissions on behalf of both parties. Appended to the Grounds of Appeal to the Upper Tribunal was an unreported Upper Tribunal decision that post-dated the First-tier Tribunal’s decision in this case and Ms Patyna submitted to us that she was not seeking to rely on it at this error-of-law hearing. At the end of the hearing, following our deliberating in private, we announced that we had found an error of law and that our written reasons would follow in due course.

Grounds of appeal

13. The Grounds of appeal are submitted in extended terms within the bundle; however we summarise them as follows.

14. Ground 1 – The judge failed to find whether or not the Appellant has a well-founded fear of persecution in his home area of Parek in Malaysia.

15. Ground 2 – The judged failed to adequately assess and make findings on the v.2, July 2024 Country policy and information note (“CPIN”). (Note it is an earlier version of the CPIN that appears in our bundle, however the parties clarified that the v.2 July 2024 version, which was the most recent version at the date of the First-tier Tribunal hearing, was discussed at that hearing.)

16. Ground 3 – The judge misdirected themselves in law in relation to how they evaluated the FCDO evidence.

17. Ground 4 – The judge failed to provide adequate reasons for finding that the Appellant could internally relocate.

18. Ground 5 – The judge failed to provide adequate reasons for finding there were not very significant obstacles to the Appellant reintegrating in Malaysia.

19. Ground 6 – The judge misdirected themselves in law in their Article 8 assessment and failed to provide adequate reasons for their finding

Submissions

20. The oral submissions were audio recorded as is common practice, and as such are not recorded in full here. Ms Patyna pursued all the Grounds of appeal, and each of them was opposed by Ms Ahmed. It was the joint position of both parties that if an error-of-law was found, the case should be retained in the Upper Tribunal.

Findings – Error-of-law

Ground 1
21. Following oral submissions by the parties and their responding to our questions, both parties agree, and we so find, that the judge does not make an explicit finding anywhere in their judgement on whether the Appellant has a well-founded fear of persecution in his home area of Parek in Malaysia.

22. Ms Ahmed submitted that this error was not material because of the judge’s findings on internal relocation.

23. We find that even when reading the judgement as a whole, including the sections that address the issue of internal relocation, the judge was still under a duty to explicitly address the question of whether the Appellant has a well-founded fear of persecution in his home area.

24. Having found at [21] that the Appellant is a gay man, the judge identifies at [22] that “the issue then is whether he can safely return to Malaysia” and discusses at [22]-[24] issues pertaining to discrimination he may face in Malaysia generally due to the convention reason of sexuality.

25. Discrimination due to a convention reason may be such as to amount to persecution or may not amount to persecution. It depends on the level and nature of the discrimination. The judge has not made a finding about whether the discrimination they identify is such as to amount to persecution.

26. We find that the judge has made no finding on whether or not the Appellant has a well-founded fear of persecution in Parek, and that a failure to make a finding on such a fundamental part of the Appellant’s claim amounts to a material error of law.

27. Given how central the issue is to the Appellant’s claim, we do not accept the submission of Ms Ahmed that the error was not material as the judge went on to find that the Appellant could internally relocate. This is because in our judgement the failure to determine this central component of the claim is a procedural error of such gravity that it is not ameliorated by the presence of internal relocation findings.

Ground 2
28. In our judgement whilst we accept that a judge is not required to refer explicitly to every relevant document in their judgement, in this case the CPIN is such an important document that is relied on by both parties, that a failure to make findings on how it relates to the Appellant’s situation is a material error of law.

29. The CPIN contains material that is potentially of assistance to both parties in furthering their case, and it goes into considerable detail on the relevant issue of the treatment of gay people in Malaysia. For example, its discussion of how federal law is applied to gay people, and its discussion on how gay people are treated in different parts of Malaysia. The implications of how the evidence in the CPIN applies to the Appellant’s situation and how the various aspects of this evidence should be evaluated are disputed matters between the parties.

30. The relevance of this goes both to the question of whether or not the Appellant has a well-founded fear of persecution and also to issue of internal relocation.

31. The judge makes no reference and no finding on the CPIN and their failure to do so in our judgement amounts to a material error of law.

Ground 3
32. In [22], we find that the judge made a material error of law in how they evaluated the FCDO evidence. The FCDO evidence consisted of advice for non-Malaysian travellers visiting Malaysia, and in our judgement the situation of the Appellant were he to return (i.e. as a Malaysian citizen to live in the country) is so qualitatively different to that of a non-Malaysian traveller, that it is an error of law to rely on it in the way that the judge does.

Grounds 4, 5 and 6
33. Ms Ahmed conceded that if we had established errors of law as we have done above on Grounds 1 and 2, that these also infect the findings relating to internal relocation, very significant obstacles, and the Article 8 assessment; and thus by inference Grounds 4, 5 and 6 also demonstrate in our judgement errors of law.

Conclusion

34. The decision of the First-tier Tribunal signed on 1 January 2025 is set aside because we have found that it contained errors of law.

35. The finding that the Appellant is a gay man at [21] is preserved. No other finding is preserved.

36. We have considered [7.2] of the Practice Statements of the Immigration and Asylum Chambers of the First-tier Tribunal and the Upper Tribunal and note that the presumption is for the Upper Tribunal to remake decisions.

37. We find that this is not a case where the extent of the judicial fact-finding or a lack of fairness in the First-tier Tribunal hearing requires the appeal to re-heard by the First-tier Tribunal, particularly in the light of the joint position of the parties that it should be retained, and we are satisfied that it is appropriate for the appeal to be retained by the Upper Tribunal

Notice of Decision

The decision of the First-tier Tribunal involved the making of a material error on a point of law.

The decision of the First-tier Tribunal is set aside and retained in the Upper Tribunal for remaking. The finding at [21] is the only finding preserved.

Directions

1. The remaking hearing is to be listed if convenient before UTJ Norton-Taylor and/or DUTJ Richards, otherwise before any UTJ or DUTJ.

2. The remaking of this appeal is to be listed for the first available date at Field House with a time estimate of 3.5 hours.

3. Any updating evidence either party wishes to rely upon must be electronically filed with the Upper Tribunal and served on the other party 21 days prior to the remaking hearing.

4. The appellant is to file and serve a skeleton argument, if so advised, no later than 14 days before the resumed hearing.

5. The respondent is to file and serve a skeleton argument, if so advised, no later than 7 days before the resumed hearing.

Judge Richards

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

17 December 2025