Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-001757
First-tier Tribunal No: PA/62929/2023
LP/08581/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 19 August 2026

Before

UPPER TRIBUNAL JUDGE NEVILLE

Between

KK
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr O Sobowale, counsel instructed by Spencer West LLP on both dates
For the Respondent: Mr K Ojo, Senior Presenting Officer, on 18 June 2025
Ms A Ahmed, Senior Presenting Officer, on 21 May 2026

Heard at Field House on 18 June 2025 and 21 May 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.

DECISION AND REASONS
Error of law
1. The appellant, KK, is a 32-year-old gay man from Malaysia. On 22 April 2021, he claimed asylum in the United Kingdom on the basis that, if returned to Malaysia, he would face a reasonable likelihood of persecution, or a real risk of serious harm, on account of his sexual orientation.
2. The Secretary of State refused the claim on 13 November 2023 for two reasons. First, KK was not accepted to be gay. Second, even if he were, the country evidence did not justify concluding that gay men face a reasonable likelihood of persecution in Malaysia.
3. KK appealed to the First-tier Tribunal (FtT). Evidence was heard from KK and two friends who attested to his expression of his sexual orientation and identity in the UK. In its decision of 28 February 2025, the FtT decided the appeal according to the questions posed by Lord Hope in HJ (Iran) v SSHD [2010] UKSC 31. In summary, it was found that KK had given a true account of his sexual orientation, that he had previously been in gay relationships in the UK and had established a social life here in the LGBTQ community. While not set out in express terms, it can be reasonably inferred that the FtT accepted that KK would conceal aspects of his sexual orientation because he genuinely fears persecution.
4. The appeal was nonetheless dismissed because KK’s genuine fear of persecution in Malaysia was found to not be objectively well founded. In reaching that conclusion, the FtT considered it relevant that KK is not Muslim (so Sharia law in Malaysia does not apply to him), and that the relevant Home Office Country Policy & Information Note suggested that gay men could avoid risk by moving to Kuala Lumpur, where LGBTQ clubs and societies operate largely without interference. Any risk faced by KK on return could therefore be reasonably avoided by internal relocation. The FtT declined to place any weight on an expert report provided by Dr Imranali Panjwani, which set out a contrary view.
5. The appeal was accordingly dismissed. KK sought permission to appeal to the Upper Tribunal on three grounds that, as observed by the judge who granted permission, all amount to asserting that inadequate consideration was given to Dr Panjwani’s report.
6. Dr Panjwani produced a supplementary report in response to the issues raised in the FtT’s decision, which was then included in the papers before the Upper Tribunal without any application having been made under rule 15(2A). While the content of the report was discussed at the hearing, I have taken no account of it in deciding whether there is an error of law in the FtT’s decision.
7. The FtT began its assessment by setting out Dr Panjwani’s qualifications, research interests and experience, as well as his visits to Malaysia and their purpose. It then held as follows:
64. I have considered Dr Panjwani's report in its entirety. I find that whilst Dr Panjwani has acknowledged his duty to the court/tribunal, I find that Dr Panjwani fails to set out the sources of his findings. His stated purpose for visiting Malaysia was to research the plight of religious and racial minorities. I find that I cannot place any reliance on his report as setting out the position of LGBT persons in Malaysia and have, therefore, preferred the information included in the CPIN. The CPIN shows that:
"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.
Persons who are likely to be able to demonstrate a real risk of treatment by state actors that amounts to persecution are:
• Muslim LGBI persons accused of same-sex sexual acts who are likely to be prosecuted under Sharia law
• trans persons, particularly Muslims, who are open about their gender identity
• those likely to be forced to undergo conversion therapy practices (CTPs)"
8. The FtT then considers whether KK falls into any of those bulleted risk categories, citing the parts of Dr Panjwani’s report which acknowledge that he does not. The remainder of the decision is concerned solely with the evidence contained in the CPIN, and no further consideration is given to the report.
9. Mr Sobowale directed me to the various places in the report where Dr Panjwani had footnoted his sources and argued that the FtT had simply failed to justify its decision to dismiss the entire report.
10. Mr Ojo accepted that the FtT’s reasoning is extremely brief, but had to be read together with the preceding paragraph:
63. Dr Panjwani researches comparative Islamic and Western law, Muslim diaspora, human dignity, legal education and philosophy. He has worked as a legal adviser for law firms and companies in Immigration & Civil Rights, Islamic law, Commercial litigation and Family law. He has travelled to Malaysia twice in the last six years. The purpose of his trips has been to investigate and understand the plight of religious and racial minorities in the country. He also continues to receive information from Kuala Lumpur. His contacts assist me in my research by directing me to authentic sources on issues inside Malaysia.
11. Something has obviously gone wrong with the final sentence. Mr Ojo’s suggestion, with which I agree, is that the FtT had intended to finish paraphrasing this part of the report:
1.7 In terms of my expertise on Malaysia, I have travelled to the country twice in the last approximately six years – both for the purposes of fieldwork, conferences and research. One of these trips is explicitly stated in my CV at the end of my report: ‘Case Law as a Solution for Reclaiming Minority Rights & Identities’ (Universal Justice Network Conference, Penang, Malaysia, 25-26 October 16). The purpose of my trips has been to investigate and understand the plight of religious and racial minorities in the country. I also continue to receive information from my Malaysian contacts both inside the UK and in Kuala Lumpur. My contacts assist me in my research by directing me to authentic sources on issues inside Malaysia.
12. Armed with that information, argued Mr Ojo, it can be seen that FtT’s complaint that Dr Panjwani “fails to set out the sources of his findings” refers to the unidentified contacts mentioned at the end of para 1.7, and that these unidentified contacts were the source for the aspects of the report that were actually material to the issue. While multiple footnoting appeared elsewhere, this was not the case when Dr Panjwani described the risk that would be faced by KK. I was taken, by way of example, to para 5.6 in which the existence of fatwas against homosexuality are described as influencing Muslims “to discriminate and exhibit violence towards LGBT individuals” – no source was provided for this evidence.
13. I was directed to points of strength and points of weakness in Dr Panjwani’s report; I agree with Mr Ojo that some of the assertions are unsourced, and that he may well lack sufficient direct experience to give the first hand “skilled evidence of fact” described in Kennedy v Cordia (Services) LLP (Scotland) [2016] UKSC 6 at [41]. He nonetheless provides some evidence that had the potential to carry weight in the FtT’s analysis and that referenced external sources, for example the reports of arrests at para 6.3, mistreatment in detention at para 6.4, and police raids of LGBT parties in Kuala Lumpur at para 8.3. Moreover, the influence described at para 5.6 could be a legitimate inference for Dr Panjwani to draw from the evidence set out elsewhere in his report.
14. Despite Mr Ojo’s impressive defence of the decision, I conclude that the FtT gave inadequate reasons for placing no weight at all on Dr Panjwani’s evidence. The FtT was obliged to explain to the parties why they won and lost on the principal issues of controversy: English v Emery Reimbold and Strick [2002] EWCA Civ 605 [2002] 1 WLR 2409 at [16]; South Bucks District Council and Anor v Porter [2004] UKHL 33 [2004] 4 All ER 775, at [36]. In R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982 at [15], Brooke LJ described the “anxiety of an appellate court not to overturn a judgment at first instance unless it really cannot understand the original judge's thought processes when he/she was making material findings.” That anxiety is reflected in the principles collated and summarised in the Practice Direction from the Senior President of Tribunals: Reasons for decisions.
15. No one could have mounted a more persuasive defence of the decision than Mr Ojo but, even on the most benevolent of views, the FtT has not explained what it made of the parts of the report that were both sourced and plainly material to the issue before it. Accordingly, KK cannot know why he lost his appeal. This stands as a material error of law and the decision of the FtT must be set aside. I need not address the other grounds.
Re-making the decision
16. The above reasons were sent to the parties with directions that the appeal be re-decided at a further hearing. Save as they relate to risk, the FtT’s findings were detailed and unchallenged so they were preserved. Due to the limited fact-finding required the Upper Tribunal was the appropriate venue.
Legal principles
17. The issues are supplied by section 32 of the Nationality, Immigration & Borders Act 2022 and HJ (Iran) at [82]. In this appeal, it is accepted that KK is gay, that gay people form a particular social group in Malaysia for the purposes of the Refugee Convention, and that if KK would not ‘live openly’ as a gay man in Malaysia then a material reason would be his genuine subjective fear of persecution. The remaining question is therefore whether the available evidence satisfies the Tribunal that gay people who live openly would face a reasonable likelihood of persecution.
18. The Secretary of State’s case that there is no such likelihood in Kuala Lumpur and that KK could be reasonably expected to live there. As to what is reasonable, as held in ASJ the Tribunal must decide whether it would be unduly harsh, and so unreasonable, to expect the person claiming protection to relocate, and in answering that question the Tribunal must conduct a holistic assessment that takes account of all relevant circumstances pertaining to the claimant and his country of origin, such as age, gender, experience, health, skills and family ties. In SC (Jamaica) v Secretary of State for the Home Department [2022] UKSC 15 at [60], Lord Stephens reiterated that “the stringency of the reasonableness test is not to be underestimated”.
19. Ms Ahmed did accept that if there was a reasonable likelihood of persecution in Kuala Lumpur, or elsewhere if KK could not be reasonably expected to relocate there, then he could not avail himself of protection from the state.
20. What amounts to a ‘reasonable likelihood’ has been expressed in numerous different ways. As recently observed by Singh LJ in MAH (Egypt) v Secretary of State for the Home Department [2023] EWCA Civ 216, by reference to earlier authority, less than a 50% chance of persecution is required to meet the test, and even a 10% chance might do so. In HJ (Iran) at [91], it was held that the likelihood of mistreatment must be taken together with its potential severity.
The parties’ cases
21. The parties were given permission to provide further evidence relevant to the above issues. Neither chose to do so, KK relying on the evidence provided for the FtT proceedings and the Secretary of State relying on the CPIN.
22. The only matter needing clarification in relation to KK personally is whether he could obtain family support on return. I consider that a fair reading of the FtT’s findings is that no such support would be available. KK’s account was accepted, and it includes that when his family learned he had a relationship with a man they threw him out of the house. His parents later divorced and his mother passed away. At the time he left Malaysia he had no relationship with his adult siblings or father and they would not support him while he openly expresses his sexual identity.
23. Both representatives took me through the 2024 CPIN in detail and I take careful account of their submissions without repeating them all. Use of different abbreviations, such as LGB, LGBT and others, is deliberate and reflects both the evidence and policy within the CPIN; trans people are accepted as falling into a higher risk category than others. I have been careful to identify where evidence concerns the treatment of trans people, while recognising that it can still shed light on wider issues. Moreover, KK’s claim is not undermined by another group facing greater risk. The issue is whether KK’s membership of the PSG is causally connected to the real risk he faces.
24. Ms Ahmed adopted the arguments contained in the initial refusal decision and in the respondent’s review conducted during the FtT proceedings. Her case can be summarised as being that the evidence collated in the CPIN did not support a conclusion that a non-Muslim gay man living openly in Malaysia faces a real risk of persecution. She emphasised the CPIN’s assessment that, although Malaysia remains socially and religiously conservative and same-sex activity remains criminalised in law, LGB persons generally face discrimination rather than treatment reaching the threshold of persecution. The CPIN states that prosecutions under the Penal Code are rare, that there is no reliable evidence of significant numbers of prosecutions, and that the assessed risk of arrest for “unnatural sex” offences is extremely low. She further submitted that the more severe Sharia provisions, including provisions permitting caning, apply only to Muslims and not to KK.
25. In relation to Kuala Lumpur in particular, my attention was drawn to evidence said to demonstrate that there is an LGBT community and ‘gay scene’ in the city, including nightlife, and community organisations and support services that operate without state interference. In particular, the BlueBoy nightclub has remained open following a single raid in 2018, that civil society organisations advocating for LGBT persons continue to operate, and that government-supported HIV and sexual health services are available for men who have sex with men. In her submission, this evidence demonstrated that openly gay people are not systematically identified, arrested or persecuted, and are able to live and work in Kuala Lumpur. The evidence suggests that it is a common destination for LGBT people from elsewhere in Malaysia.
26. As to the two reports by Dr Panjwani, Ms Ahmed submitted that neither properly engaged with the CPIN evidence. She argued that the reports concentrated on examples of discrimination, hostile rhetoric and instances in which risk could arise in principle but paid insufficient attention to the CPIN’s analysis of prevalence, frequency and likelihood. In particular, she submitted that the experts did not adequately grapple with the evidence concerning the rarity of prosecutions, the limited evidence of arrests of non-Muslim gay men, the existence of an LGBT community in Kuala Lumpur, and the evidence supporting internal relocation there. She contended that the reports therefore overstated the practical risk faced by the appellant and provided little evaluation of the contrary country evidence assembled in the CPIN.
Consideration
27. I need not set out Mr Sobowale’s submissions in response, as they accord with my own reasons for finding that KK would face a reasonable likelihood of persecution in Malaysia.
28. Same-sex sexual activity remains criminalised on a federal level, including in Kuala Lumpur. The country evidence at 7.1.5 records that the federal Penal Code addresses “carnal intercourse against the order of nature”, including same-sex acts, with penalties of up to 20 years’ imprisonment and/or whipping, and that “gross indecency” in public or private carries imprisonment of up to two years. While prosecutions may be uncommon and the statistics unclear, the data at 8.5.5 shows that they do occur and that the federal legal provisions recorded at 7.1.5 are not obsolete. In the present context the shortcomings of the statistical evidence can be properly taken as leaving a “positive role for uncertainty”, see KS (benefit of the doubt) [2014] UKUT 552 (IAC) at [47].
29. More importantly, even an unlikely prospect of criminal action, with potential punishments that include lengthy imprisonment and whipping, still contributes to the social background against which gay men in Malaysia live, work, socialise and decide whether to be open. Nor does the evidence cite prosecution as the only relevant harm. Para 8.2.8, referring to a USSD report, notes that observers report violence against LGBTQI+ persons to be common, and that police at times perpetrated and condoned such violence, including against individuals in custody. The DFAT material summarised in the CPIN also records gay men being stopped by police and having phones checked for LGBTQ messages or apps, and a serious problem of blackmail and extortion by police officers.
30. The CPIN confirms that much action is taken by religious authorities and that prosecutions take place under Sharia law. This cannot apply directly to non-Muslims such as KK. This consideration does add weight to the Secretary of State’s case, but to the extent of showing that Muslim gay men are at greater risk than non-Muslim gay men; the statistics are too limited and opaque to support the latter conclusion. Even though KK is less likely to be the subject of individual action, it is notable that the raid on the BlueBoy club was conducted in a joint operation between religious authorities and the police. This illustrates that there is no bright line between civil and religious enforcement; following the raid a federal minister stated that “Hopefully this initiative can mitigate the LGBT culture from spreading into our society.”
31. Further examples of adverse official attitudes, focused on illegality, punishment and correction of LGBT identity, are collated within section 9. An example is at para 9.2.9, being the UN country team’s concern that hateful rhetoric and discriminatory laws have led to incitement to discrimination, hostility and violence. Across official language and attitudes, treating LGBT identity as something to be punished, cured, corrected and contained is thematic.
32. To continue that theme, living openly is not limited to avoiding prosecution for sexual acts. It includes forming relationships, socialising with other gay men, using gay venues or networks, being open at work about relationships, being known as gay to family or community and public expression of that identity. The evidence at section 11 of the CPIN shows restrictions on such self-expression. It is illustrative that even KK struggled to articulate the concept of homophobia in his own language when first interviewed, calling it “racism” instead.
33. There is also evidence of difficulties in employment. Paragraph 10.3.2 records employment discrimination, including pressure to hide identity or conform to heterosexual norms, reprimands or warnings for being pro-LGBTQ or attending LGBTQ-inclusive events, and threats by colleagues to report individuals to employers. The appellant’s past ability to work in Malaysia is not a complete answer if he cannot do so openly as a gay man.
34. Paras 10.2.1 and 10.2.2 do record STI and HIV services for MSM and trans women, including community-friendly clinics in Kuala Lumpur. Paragraph 11.3.4 records health, shelter, mental health and community support. These are relevant, but tolerance of services that mitigate harms to an at-risk community does not rule out a real risk of persecution.
35. I accept that Kuala Lumpur is more permissive than some other parts of Malaysia and that there are services, networks and some spaces in which LGBTQ people connect. The actual prosecution of non-Muslim gay men is uncommon. Yet the section 11 evidence is important because it concerns public expression. The evidence about cancelled Pride activity, police investigation of LGBT-inclusive protest, and the use of private or semi-private networks to connect with others shows that openness itself attracts risk or restraint. The existence of online groups and support networks, and meeting discreetly in ordinary rather than LGBT spaces, does not establish public tolerance. It is equally consistent with a community which survives by caution, limited visibility and informal support. The greater tolerance in Kuala Lumpur is furthermore precarious, dependent on forbearance from enforcement of laws that remain available to the authorities and that they still use on occasion.
36. Taking all the evidence into account, I find that a reasonable likelihood of persecution arises cumulatively from criminalisation, severe penalties, official hostility, police involvement, family and social violence, employment pressure, and the need for discretion. This is the case throughout the country, including Kuala Lumpur. That risk can only be avoided by acting discreetly in such a way as to contravene the principle set out in HJ (Iran) at [77]. I reach that conclusion solely by reference to the evidence referenced in the CPIN; while I therefore do not need to address Dr Panjwani’s reports in detail, it can be seen to provide further support as already indicated at [13] above. While I reach this decision on the evidence in any event, I also note it to be consistent with the respondent’s own assessment in section 4 that, in general, the state is able but not willing to provide effective protection, and that it would be unreasonable to expect an LGBTI person to seek protection from the authorities.
Conclusion
37. The relevant issues are therefore answered in favour of KK, and the appeal is allowed on the grounds that removing KK from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention. It follows that return would additionally be contrary to Article 3 ECHR. Article 8 need not be addressed.
38. I continue the anonymity order. Maintaining integrity of the UK’s asylum system justifies derogation from the principle of open justice.
Notice of Decision
(i) The decision of the First-tier Tribunal involved the making of an error on a point of law and is set aside.
(ii) The Upper Tribunal re-makes the decision by allowing KK’s appeal against the refusal of his protection claim.

J Neville
Judge of the Upper Tribunal
Immigration and Asylum Chamber

10 August 2026