Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002860
PA/67952/2023
LP/08728/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 4th of June 2026

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

H H
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms V. Laughton, Counsel instructed by Milestone Solicitors
For the Respondent: Ms H. Gilmore, Senior Home Office Presenting Officer

Heard at Field House on 18 March 2026

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because the case involves consideration of a protection claim. 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
Summary
1. This is a decision of the Upper Tribunal (Immigration and Asylum Chamber) (‘the Upper Tribunal’). The Upper Tribunal is an independent decision-making body with powers given by an Act of Parliament. This decision is made in the context of the Upper Tribunal’s role in considering statutory appeals from decisions made by the First-tier Tribunal (Immigration and Asylum Chamber) (‘the First-tier Tribunal’).
2. The appellant appealed the respondent’s decision to refuse a protection and human rights claim. The appellant lodged an appeal to the First-tier Tribunal under section 82 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). The appeal could be brought on the ground that removal would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 (‘HRA 1998’). A First-tier Tribunal judge dismissed the appeal.
3. The losing party in an appeal before the First-tier Tribunal can apply for permission to appeal to the Upper Tribunal. The appellant was granted permission to appeal to the Upper Tribunal. In an earlier decision, the Upper Tribunal found that the First-tier Tribunal decision involved the making of an error on a point of law with reference section 12 of the Tribunals, Courts and Enforcement Act 2007 (‘TCEA 2007’). The First-tier Tribunal decision was set aside. After a further hearing the Upper Tribunal makes a fresh decision in the statutory appeal brought on protection and human rights grounds.
4. A person is recognised as a refugee if they have a well-founded fear of persecution. Acts of persecution are not confined to physical harm but must be sufficiently serious by their nature or repetition to amount to a serious violation of basic human rights. The feared harm must also be ‘for reasons of’ one of five characteristics outlined in the Refugee Convention i.e. political opinion, race, religion, nationality, or ‘particular social group’. In cases involving a fear of a person who is not a state agent, a person must also show that the authorities in their own country are unable or unwilling to provide an effective system of protection and/or that it would be unreasonable or unduly harsh to expect them to relocate to another area of the country to avoid the persecution that they fear. International protection is only available if the evidence shows that all of those elements are satisfied.
5. The Upper Tribunal finds that the appellant has a well-founded fear of persecution for reasons of her membership of a particular social group of ‘LGBTI persons’. The appellant’s removal to Malaysia in consequence of the decision would breach the United Kingdom’s obligations under the Refugee Convention and would be unlawful under section 6 of the HRA 1998.
Decision and reasons
Terminology
6. The appellant’s protection claim is based on a fear of persecution for reasons of her sexual orientation. The collective terminology used to describe people who come within a range of different orientations and identities such as lesbian, gay, bisexual, trans, and intersex can vary. The Equal Treatment Benchbook uses the acronym LGB and treats gender identity separately. The respondent’s Country Information and Policy Note (CPIN) uses the terms LGBTI, LGBI and LGBT. The advocacy group Stonewall currently uses the term LGBTQ+ and makes clear that there is no single ‘correct’ way to talk about LGBTQ+ identities. Language is constantly evolving and people might use different terms to describe themselves. The UN appears to use the umbrella term of LGBTI in relation to human rights issues. This is mirrored by Amnesty International, which also uses the term LGBTI. For the purpose of this decision, I will use the term LGBTI because the appeal considers international conventions relating to human rights.
Background
7. The appellant entered the UK on 20 June 2022 and was granted leave to enter as a visitor. On 27 June 2022 she applied for asylum. The protection claim was made the day before statutory provisions relating to interpretation of the Refugee Convention contained in the Nationality and Borders Act 2022 (‘NABA 2022’) came into force. For this reason, the provisions contained in NABA 2022 do not apply to this claim.
8. The appellant’s protection claim was based on two elements. First, the appellant says that she is a lesbian / gay woman who would be at risk on return to Malaysia for reasons of her sexual orientation. Second, she also expressed a fear of an ex-boyfriend who she was in a relationship with for about 1 year just before coming to the UK. The appellant said that she suffered abuse in the relationship and that her ex-boyfriend threatened to expose her sexual orientation. For the purpose of this decision, the appellant now only relies on the first element of her claim.
9. The respondent refused the application in a decision dated 08 December 2023. Aspects of the decision letter indicate a lack of anxious scrutiny. For example, the decision incorrectly states that the appellant entered the UK with a European passport. When describing whether sufficient protection was likely to be available, that section of the decision is rather muddled and unclear. Nevertheless, the gist of the reasons for refusing the application was sufficiently clear to understand that the respondent did not accept the credibility of the appellant’s claim to be a lesbian. It was said that the account she gave in interview was vague and lacked detail. It was also asserted that her claim to fear her family if she returned to Malaysia was inconsistent with the fact that she continued to be in contact with her parents. The respondent found that the background evidence shows that LGBTI people who are not Muslim and do not follow Sharia law are not likely to be at real risk of serious harm. The respondent considered that internal relocation to Kuala Lumpur, where tolerance was likely to be higher, was likely to be a reasonable option.
10. The First-tier Tribunal dismissed the appeal in a decision sent on 13 January 2025. Having heard evidence from the appellant and another witness, the judge found that the appellant had failed to produce sufficient reliable evidence to establish the credibility of her claim to be a lesbian. In any event, he found that the evidence did not show that the appellant would be at real risk of serious harm if she returned to Malaysia.
11. In a decision sent on 28 October 2025, the Upper Tribunal found that the First-tier Tribunal decision involved the making of an error of law (annexed). Although many of the judge’s findings were likely to be open to him to make, the Upper Tribunal found that (i) the judge made a material mistake of fact that affected his credibility findings; (ii) failed to engage adequately with the evidence given by the appellant’s friend; and (iii) failed to engage adequately with the background evidence relating to the treatment of LGBTI people in Malaysia.
12. The First-tier Tribunal decision was set aside. The case was listed for a resumed hearing, which then needed to be adjourned in the interests of justice. The resumed hearing was relisted to be heard on 18 March 2026.
13. The following issues were identified for determination at the start of the hearing:
(i) The credibility of the appellant’s claim to be a lesbian / gay woman;
(ii) Whether it is reasonably likely that the appellant would suffer ill-treatment of sufficient severity to amount to persecution or serious harm for reasons of her sexual orientation if returned to Malaysia. Within that issue:
(a) The appellant asserts that she is likely to be at risk from family members in her home area but accepts that she could relocate to another area of Malaysia.
(b) The appellant asserts that she would still suffer harm amounting to a severe violations of her human rights in any other area of Malaysia if she was forced to hide her sexual orientation because she fears discrimination, violence, or potential prosecution.
(c) The respondent accepts that the evidence shows some incidents of discrimination and violence towards LGBTI people in Malaysia, but did not accept that they were so serious or widespread to amount to a real risk of serious harm.
(d) The respondent accepts that the evidence shows that the Malaysian authorities are able to provide effective protection, but are unwilling to do so. The respondent submits that Kuala Lumpur is likely to be a reasonable option for internal relocation.
(e) The respondent accepts that any potential risk was likely to be for reasons of ‘membership of a particular social group’, which was identified as ‘LGBT [persons]’ in the decision letter.
14. The appellant (HH), a male friend (‘the first witness’), and a female friend (‘the second witness’) attended the hearing. They gave evidence with the assistance of a Mandarin speaking interpreter.
15. I have considered the evidence given by the witnesses and the oral submissions made by both parties. I have also considered the documents and evidence that was before the First-tier Tribunal as well as the updated information contained in the bundle prepared for the hearing in the Upper Tribunal. The evidence and submissions are a matter of record and are known to the parties. For this reason, it is not necessary to set out every detail of the evidence and submissions in this decision. However, I will refer to relevant aspects during the course of my findings.
Claim to be a lesbian / gay woman
16. In certain cases immigration judges are asked to assess whether the thoughts and feelings of an appellant are likely to be genuine or not. Whether a person is likely to be gay as claimed is one of those difficult decisions. It is not possible to enter another person’s heart and mind. If disputed, a person’s sexual orientation is not something that can be proved with any level of confidence or certainty. However, the low standard of proof applied in asylum appeals does not require certainty and leaves some room for doubt.
17. A judge must take a structured approach to assessing the credibility of a claim with reference to the evidence before them. They must evaluate whether the appellant has given an internally consistent account with a credible level of surrounding detail. The judge will consider whether the appellant’s account is consistent with background evidence relating to the way in which LGBTI people are likely to be treated in the relevant country and whether the appellant has been able to support aspects of their account with evidence that they could reasonably be expected to obtain. A judge must evaluate what weight can be placed on any supporting evidence that has been produced.
18. The background evidence before the Upper Tribunal includes the respondent’s CPIN on ‘Malaysia: Sexual orientation and gender identity or expression’ (Version 2.0)(July 2024). The CPIN states that Malaysia is a culturally and religiously conservative country in which there is a negative view of same sex relationships and a strong social taboo in relation to LGBTI issues among Muslims [CPIN 3.3.1], which is the largest religious community [13.1.3]. Many members of the LGBTI community reportedly hide their identity to avoid harassment, ostracism from their family, or violence [9.1.1].
19. In assessing what weight can be placed on the evidence given by the appellant and the two witnesses, who are also Malaysian, I take into account the fact that they come from a socially conservative society. When giving evidence at the hearing, all three witnesses appeared to be rather uncomfortable discussing the topic of sexual or romantic relationships. When asked questions about relationships, or why they thought that the appellant was a lesbian, the appellant and her witnesses spoke in generalised terms. I bear in mind that this could be due to the conservative culture that they come from but might equally be relevant to whether they were able to provide a credible amount of surrounding detail to support the appellant’s claim to be a gay woman.
20. In interview and in her witness statement the appellant gave a fairly simple account as to how she came to realise her sexual orientation. Nothing much was said about her teenage years save for noting that her family wanted her to marry a man and to have children. The appellant said that she came to realise that she was not attracted to men when she was around 21-22 years old.
21. The appellant says that it was not until she met her first and only meaningful girlfriend, ‘L’, when she was around 24-25 years old, that she came to realise that she was a lesbian. No detail was offered as to when and where she met L or how the relationship developed. It was only when I asked the appellant for a little more detail that she told how and where they met. The appellant became more animated while talking about L and appeared to be describing events in a natural way. She told me that L was a regular customer in the shop where she worked. They chatted and sometimes went out for a meal together. The appellant said that she had a ‘feeling of love’ and felt comfortable when L told her that she was gay. The appellant also told me that the main reason why the romantic relationship ended was because of pressure from her parents. Although her evidence is that her parents did not know about her sexual orientation, the appellant said that they thought L was a bad influence on her because she was a ‘tomboy’.
22. The photographs of the appellant with L show that L had short hair and did not wear stereotypical feminine clothing. I bear in mind that some nuances might be lost in translation and that the appellant might have been reticent to speak directly due to the conservative culture that she comes from. I find it reasonable to infer from what she was saying that her parents considered L to fit a stereotype of a gay woman and did not want the appellant to be ‘influenced’ by her for this reason. This sort of attitude is broadly consistent with the background evidence relating to Malaysia, where it is said that some LGBTI people are forced to do so called ‘Conversion Therapy’ by their families in the belief that a person’s sexual orientation is something that can be influenced or ‘corrected’ through therapy, religious ritual, behavioural conditioning or violence [CPIN 8.6.2].
23. Although the appellant was able to describe how she met L, overall, the detail given about the relationship is still fairly limited. When the evidence is considered as a whole, there is little information about how they conducted their relationship during the course of a year. The appellant described going out for meals and that they ‘went out secretly’ but does not say where they might have met when they wanted privacy given that the appellant still lived at home with her parents. Little detail has been offered about the nature and strength of the relationship. More often than not the appellant was translated to refer to L as her ‘friend’ rather than a girlfriend. When asked if she and L considered moving to Kuala Lumpur when faced with disapproval of their friendship from the appellant’s family, the appellant said that she and L did not discuss this possibility. It seems that the appellant preferred to end the relationship and to remain friends rather than to consider alternative options.
24. The appellant has produced some evidence in the form of photographs of her with another person who is said to be L. The photographs are captioned in English with descriptions of when and with whom she is pictured. The photographs are said to be of the appellant socialising in various situations with L and other people. There are a couple of photographs said to be from 2013, one saying that they were ‘on a date’ in 2018, a selfie of them together while shopping in 2020, and further pictures of them ‘on a date’ in 2021.
25. What is notable from this evidence is that there are no photographs of the appellant with L at the time when she says they were in a romantic relationship. On her evidence this was for about a year when she was 24-25 years old, which would have been in or around 2010-2011. While accepting that camera phones were less ubiquitous at the time, all of the photographs of the appellant and L together appear to post-date that period. At the hearing, the appellant gave inconsistent evidence by saying that the photograph said to be from 2013 was at a time when she was in a romantic relationship with L.
26. When it was put to the appellant that the captions were not consistent with her evidence, she said that her solicitor prepared the captions. It is a common to place blame on a legal representative for inconsistencies in the evidence. Nevertheless, if the appellant’s legal representative assisted her to prepare her witness statement, this inconsistency should have been obvious to them and should have been explored before captioning the photographs. Dependent on the level of her ability to read English, it should also have been obvious to the appellant. The way in which the photographs were captioned appeared to present a picture of a longer term romantic relationship. When the appellant was asked about these discrepancies at the hearing, she said that the romantic relationship had ended but they remained friends.
27. Even if I accept the appellant’s explanation for the inconsistencies in the captions, the evidence raises a further question as to why, if the appellant remained friends with L until not long before she left Malaysia, no attempt seems to have been made to contact L to provide a witness statement in support of her claim. Given the ease of modern communication it would be reasonable to expect some evidence from L to be produced. No explanation seems to have been offered for this obvious omission. As it stands, the appellant’s account of her romantic relationship with L is lacking in detail. The photographs do not take it much further other than to show that they were likely to be friends who liked to socialise with one another and with other friends.
28. The respondent’s decision letter relied on an apparent inconsistency between the appellant’s claim that her family might send her to a psychiatric hospital if they found out that she is a lesbian and the fact that she continues to be in contact with them. The decision letter appeared to rely on an assumption arising from leading questions put to the appellant in interview, that her parents knew about her sexual orientation. The appellant explained in her subsequent statement and at the hearing that her parents did not know that she is a lesbian but were worried that she might be ‘influenced’ that way due to her friendship with L. This was not explored in any detail in cross-examination. Nor was any further emphasis put on this point in submissions.
29. I am satisfied that the appellant clarified that her parents do not known about her sexual orientation albeit they might have had suspicions due to her friendship with L. The appellant’s subjective fear that, if her sexual orientation were to become known to her family, they might send her for ‘Conversion Therapy’ is broadly consistent with the background evidence contained in the CPIN about the way some families might react in Malaysia. However, if they did have suspicions, it is also clear that her family did not act on them. Nothing in the appellant’s evidence suggests that she was ostracised or ill-treated in any way by her family despite their suspicions.
30. The appellant no longer argues that she would be at risk from her ex-boyfriend if she returns to Malaysia. The appellant says that she bowed to pressure from her family who wanted her to get married and to have children. In her witness statement the appellant said that she wanted to appear ‘normal’. Superficially, the fact that she was in a heterosexual relationship for around a year is not consistent with her claim to be a lesbian. However, the respondent has not placed weight on this fact to undermine her claim to be a gay woman and rightly so. In many societies where it is risky to live openly as a gay person, LGBTI people often feel forced to conform to societal norms as a means of protecting themselves. For this reason, the fact that the appellant says that she was in a fairly brief heterosexual relationship does not necessarily undermine her claim to be a gay woman.
31. In so far as it might be relevant to the overall credibility assessment, the appellant’s evidence as to whether her ex-boyfriend knew of her sexual orientation is also mixed. The main reason why she ended the relationship was due to her boyfriend’s violent and controlling behaviour. In interview, it was recorded that she told the interviewing officer that she did not report his violent behaviour to the police because he ‘would tell the police I am a lesbian’. In her witness statement the appellant said that he accused her of being a lesbian but she denied it. Nevertheless, he threatened to report her to the police as a lesbian. At the hearing, her evidence was slightly different. She told me that he knew she was gay and that she admitted it to him. This apparent discrepancy was not put to the appellant to explain, so for this reason I place little weight on it. However, it does add to the overall impression that the appellant’s account of events in Malaysia is vague and lacks surrounding detail, and in some respects, has not always been consistent.
32. The respondent’s decision letter also relied on matters outlined in section 8 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (‘AITCA 2004’) that were said to damage her overall credibility. In my assessment, neither matter is particularly undermining.
33. The first asserted that the appellant failed without reasonable explanation to produce an identity document on request to the immigration officer at the screening interview (section 8(3)(a)). The evidence shows that the appellant was interviewed by video link. She gave the details of her Malaysian ID card but told the immigration officer that she had left her passport at the hotel. The immigration officer just asked her to send the document to the Home Office ‘at the earliest opportunity’. The appellant appeared to give a reasonable explanation for not being able to provide the document to the immigration officer at the date of the screening interview.
34. The second reason given in the decision letter was confused and factually inaccurate. It is not capable of undermining the appellant’s general credibility. It was said that the appellant only claimed asylum after being notified of her liability to detention on 18 January 2023. In fact, the appellant is recorded to have claimed asylum on 27 June 2022 and it was the screening interview that took place on 18 January 2023. It was also asserted that she entered with a European passport. As a Malaysian national she failed to seek leave to enter and was an illegal entrant. None of these assertions are accurate. A copy of the appellant’s Malaysian passport with a leave to enter stamp dated 20 June 2022 is included in the bundle. The appellant applied for asylum a week later at a time when she had leave to enter as a visitor. For these reasons, the reference to section 8(5) is not damaging to the appellant’s credibility.
35. However, it was open to Ms Gilmore to submit that the appellant was not honest to an immigration officer when she first entered the UK. The appellant admitted that she had told the officer that she wanted to visit the UK as a backpacker even though her intention was to stay for longer. She did not claim asylum when she had a reasonable opportunity to do so. She entered the UK, took advice, and claimed asylum fairly promptly thereafter. While I take this into account as being damaging to the appellant’s overall credibility, given the relatively brief period before she claimed asylum, I find that it is not a significant factor.
36. I now turn to the evidence relating to events since the appellant entered the UK. Although the first and second witnesses are both Malaysian, neither of them knew the appellant in Malaysia and could not testify to past events there. They both gave evidence to say that they met the appellant in the UK. They became friends and are able to freely socialise and live openly as LGBTI people here.
37. The first witness said that he met the appellant in January 2023 at a gay bar in Clapham. He might see the appellant socially with other people every 1 or 2 months. In the time that he has known her there were only a couple of occasions when they met with just them. The first witness produced evidence to show that he has been recognised as a refugee in the UK. His evidence is that this was on the basis of his sexual orientation. He said that he could talk to the appellant about their experiences of being gay in Malaysia. He was asked several questions of a similar nature to try to elicit why he considered the appellant was a lesbian. He was unable to provide much surrounding detail beyond saying that, in his opinion, the appellant is natural and open in talking about being a gay person, had been seen hugging other people, and that it was his genuine belief that she is gay. When asked, he did not think that she might be using their friendship simply to support an asylum claim.
38. The second witness said that she met the appellant at a gay bar in Soho, also in January 2023. In her witness statement she said that they meet around once a month or once every 2 or 3 months if they are busy. At the hearing she said that they meet every other week or sometimes once a month. Sometimes they meet alone and other times they meet in a group of friends. The second witness said that she attended Pride with the appellant and other LGBTI friends in June 2024.
39. The second witness said that she had also been recognised as a refugee in the UK on the basis of her sexual orientation. The second witness also said that they had been able to share their experiences of what it was like to be a lesbian in Malaysia. The appellant had told her that she could not live openly in Malaysia and had to hide her true self. Similar to the first witness, the second witness struggled to provide much detail to explain her reasons for believing that the appellant was likely to be a lesbian. She saw her ‘movement, the gestures, the way she speaks with other friends.’ She had seen the appellant cuddling and hugging other women. The second witness also said that the appellant had told her that she had a gay friend back in Malaysia.
40. At one point during her oral evidence, the second witness seemed to suggest that she had been in an ‘intimate’ relationship with the appellant. It was clear from her presentation in court that she felt uncomfortable talking about sex and romantic relationships. I bear in mind that this might partly be due to the conservative culture that the appellant and her two witnesses come from.
41. Given that this was evidence that appeared to contradict the appellant’s account, the hearing was paused over the lunch break to allow time for Ms Laughton to take instructions. When the hearing resumed Ms Laughton asked the second witness further questions before Ms Gilmore returned to cross-examination. The second witness clarified that she had not been in an intimate sexual relationship with the appellant but they had become close friends.
42. With the assistance of the interpreter and the second witness, it became apparent that there may have been an issue relating to interpretation, which was compounded by reticence on everyone’s part in describing different types of relationships. In a formal court setting, there is a tendency for professionals involved in hearings to describe a sexual relationship as an ‘intimate relationship’ for the sake of decorum. This arises from some reticence of our own in British culture and the formal nature of court proceedings. The interpreter explained that, in Mandarin, there is a word for an intimate relationship that describes something more than friends but something less than a sexual relationship. In other words, closer to the true meaning of the word ‘intimate’. It is this phrase that the second witness had been using in an attempt to describe how her relationship with the appellant had become closer over the last year.
43. Although it was clear that she was embarrassed to admit it publicly, and perhaps for the first time in front of the appellant, the second witness hinted that she would like to be in a closer relationship. It is to her credit that she overcame the discomfort that she felt to admit this in a situation that she clearly found difficult. Although her sense of reluctance initially seemed evasive, by the time she had complete her evidence I was satisfied that she had explained the issue adequately. In the end, her discomfort in disclosing her feelings towards the appellant emerged in a way that was credible and quite compelling.
44. This evidence was supported by various photographs showing the appellant socialising with the two witnesses and other friends in various bars and venue in London. She also produced photographs of her attending a Pride event with friends. Although the appellant says that she has not been in a serious relationship since she arrived in the UK, she did say that she had been dating. A single screenshot of her name on the Bumble app showed that she was registered but did not disclose any evidence of dating or what orientation any dates might be. For this reason, there is little reliable evidence to support the appellant’s claim to have been dating.
45. The reason why it is so difficult to assess whether a person is genuine when they claim asylum based on sexual orientation, which is then disputed, is that much of this kind of evidence cannot be given determinative weight. A straight or cis gendered person in the UK could just as easily socialise with LGBTI friends in bars and may attend Pride events for fun or as allies.
46. It is possible that an asylum applicant who is not genuinely gay could make friends in gay bars and could still socialise on the relatively infrequent basis described by the two witnesses. I accept that the two witnesses have given their genuinely held opinions that the appellant is likely to be a lesbian as claimed. I bear in mind that their opinions are largely based on information provided to them by the appellant. Although their reasons for concluding that she is likely to be a lesbian appeared vague, it is difficult to think of another basis upon which they could form their opinions apart from observing the appellant’s conversation and demeanour when socialising in predominantly LGBTI settings. Of course, the fact that the appellant has gay friends, and that one of them might like a closer relationship with her, is not necessarily evidence that she is gay. However, I accept that an applicant would need to be particularly determined and cynical to develop such friendships over a period of three years simply to found a false asylum claim if she is not gay. As such, this seems to be a less likely scenario.
47. At the beginning of this section I noted that it is difficult to look into a person’s heart and mind to assess whether they are genuinely gay or not. The assessment has also been complicated by the reticence of witnesses who come from a conservative culture where conversations surrounding sex and relationships of any kind are likely to be uncommon, and in the case of same sex relationships, taboo.
48. For the reasons outlined above, I find that aspects of the evidence, or lack of it, do give rise to some concerns about the credibility of the appellant’s claim to be a gay woman. Other aspects, such as the evidence of socialising with LGBTI people in the UK, is generally supportive but cannot be given significant weight for the reasons already given. The appellant’s witnesses gave their genuinely held opinions but found it difficult to articulate their reasons for believing that the appellant is a gay woman.
49. Although I cannot completely discount the possibility that the appellant might not be being honest about her sexual orientation, she only needs to show that it is reasonably likely that she is a gay woman as claimed. Although the appellant’s account of past events in Malaysia is rather vague she has been able to describe a life that required her to hide her identity in a way that is plausible and is broadly consistent with the background evidence relating to Malaysia. When the evidence is considered as a whole, I am satisfied that there is sufficient reliable information to show that it is at least reasonably likely that the appellant is a gay woman.
Risk on return
50. In assessing whether it is reasonably likely that the appellant would suffer a serious violation of her fundamental human rights in a way that would amount to persecution, I have considered the guidance given by the Supreme Court in HJ (Iran) v SSHD [2010] UKSC 31.
51. In HJ (Iran), the Supreme Court considered whether a gay man from Iran should be expected to avoid persecution by concealing his sexual orientation. The Supreme Court rejected earlier cases suggesting that this was a reasonable option. The underlying rationale of the Refugee Convention is that people should be able to live freely without fear of persecution. The question to be answered is whether a gay person would be forced to deny a fundamental aspect of their identity due to a fear of persecution. The issue is complicated because there might be other reasons why a person may choose to live discreetly. If the person is likely to do so because they do not want to upset their family or friends, or to suffer discrimination falling short of serious harm, then the Convention does not afford protection against such social pressures.
52. Lord Rodger went on to give the following guidance to tribunal decision makers:
‘82. 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.’
53. I have already found that it is reasonably likely that the appellant is a gay woman. The appellant’s account is that she spent many years hiding her sexual orientation for fear of disapproval from her family and of wider discriminatory attitudes towards LGBTI people in Malaysian society.
54. Little detail is provided as to how her relationship with L came to an end. The primary reason for the relationship ending did not appear to be any discord between the appellant and L, but the disapproval of the friendship by her family. Although her family may have had suspicions that the appellant is gay, there no evidence to suggest that they took the kind of drastic action that the appellant fears, such as sending her for ‘Conversion Therapy’ at a psychiatric hospital. While the background evidence contained in the CPIN indicates that this does sometimes happen, it does not indicate how widespread the practice is likely to be. The background evidence suggests that there is a far stronger stigma towards LGBTI people in the Muslim community. I have not been pointed to any evidence that might suggest that such practice might be prevalent in the Malaysian Chinese community. Given the widespread discriminatory attitudes towards LGBTI people in Malaysia, it is reasonably likely that her family would disapprove or might feel sufficiently embarrassed to ostracise her. However, I find that there is insufficient evidence to show that the appellant is likely to be at real risk of sufficiently serious ill-treatment from her family such that it would amount to persecution for the purpose of the Convention.
55. It is suggested that the appellant could relocate to Kuala Lumpur where attitudes are likely to be more tolerant. The appellant is a 39 year old woman who has a previous work history in Malaysia. She has lived independently from her family since she came to the UK in 2022. She told me that she has some family members in Kuala Lumpur. In practical terms, Ms Laughton accepted that it would not be unreasonable to expect the appellant to forge a new life in Kuala Lumpur. However, it was argued that she would still suffer a serious violation of her human rights even if she lived in Kuala Lumpur.
56. The background evidence contained in the CPIN indicates that many people in the LGBTI community in Malaysia hide their sexual orientation and identity to avoid ostracism, discrimination, violence, and potential prosecution. The respondent’s position is that the evidence does not show that such incidents are sufficiently serious by their nature of repetition to show that there is a reasonably degree of likelihood that the appellant would suffer treatment amounting to persecution if she lived openly as a gay woman in Kuala Lumpur i.e. the second of Lord Rodger’s points.
57. The surrogate international protection provided by the Refugee Convention is only available if a person is unable to seek the protection of the authorities in their country of nationality. In this case, it is accepted that the Malaysian authorities are able, but due to discriminatory societal attitudes towards LGBTI people, are likely to be unwilling to provide protection.
58. The background evidence shows there is no legal recognition of same sex relationships in Malaysia. Societal attitudes mean that there is a negative view of same-sex relationships, which are mirrored in the attitudes of the authorities. Some government ministers and politicians are reported to make anti-LGBTI statements in public. A Human Rights Watch report from 2022 cited in the CPIN states that ‘officials under successive Malaysian governments have typically coded their approach to sexual and gender diversity in a logic of “prevention” and “rehabilitation”, backed by the threat of punishment’ [8.1.6]. The CPIN goes on to outline various actions of the state that lead to discrimination towards people in the LGBTI community.
59. The penal code and Sharia law both criminalise ‘carnal intercourse against the order of nature’, which includes same sex acts. The penalty can be up to 20 years imprisonment or whipping. Although the incidents of prosecution appear to be relatively low, they are not negligible, and must be considered in the context of the other evidence showing that many LGBTI people hide their identity to avoid ostracism, discrimination, violence, or potential prosecution.
60. The evidence contained in the CPIN report suggests that the number of prosecutions in Kuala Lumpur went from 29 to 22 to 10 in the period from 2020 to 2022. No further information is provided about the circumstances in those cases i.e. whether the LGBTI person was living openly or not. Those figures were far lower than an area such as Selangor, which recorded high levels of prosecutions, but were still higher than some other areas listed in the CPIN [8.5.5]. Punishments such as whipping are reported to be carried out albeit the evidence does not give any clear indication of how widespread such ill-treatment of LGBTI people might be across Malaysia.
61. The background evidence indicates that prosecutions and punishment are more likely to be carried out by Sharia authorities, but it is still the case that federal law criminalises same sex acts. The police and religious authorities are reported to undertake occasional joint operations, such as the August 2018 raid on a gay bar in Kuala Lumpur [8.2.7]. The CPIN cited the US State Department report for 2023, which noted that violence against LGBTI people was common and that the police at times condoned and perpetrated such violence [8.2.8]. However, the underlying source for that information is unclear.
62. Later in the CPIN the US State Department report was also said to report that the federal government funded ‘rehabilitation retreats’ aimed at LGBTI persons. A Minister in the Department for religious affairs was reported to be ‘working with other ministries to “curb perverse activities such as being a lesbian, gay, bisexual, or transgender person.”’ The Minister added that 220 persons were involved in the programs during the year and that the government was ‘consistent’ in its stance that the ‘practice of LGBTQI+ is unacceptable in the Islamic community.’ [8.6.14].
63. The Malaysian government’s antipathy towards LGBTI citizens creates a climate of self-censorship online. Nevertheless, the CPIN also includes information to say that there does not appear to be systematic blocking of LGBTI websites [8.7.1]. However, other forms of censorship and restrictions on freedom of expression do occur [8.7.2]-[8.7.6]. Discrimination is reported in employment and education. Some LGBTI groups are able to operate in Malaysia but high profile work and leaders might be targeted [11.2.2].
64. Under the heading of ‘Gay “scene” or “community”’ the CPIN reports that a Pride event organised to take place in Kuala Lumpur in 2017 was cancelled due to religious complaints. At the time of the publication of the CPIN there had been no Pride events in Malaysia. It is said that many gay and lesbian Malaysians ‘prefer to be discreet’ by meeting in coffee shops in busy shopping malls in Kuala Lumpur [11.3.3].
65. As a whole, the background evidence shows that Muslim and trans members of the LGBTI community are more likely to face discrimination, threats, and violence in Malaysia. This is not to say that other LGBTI people are not subject to the same climate of intolerance. It is difficult to ascertain from the evidence whether people from the LGBTI community are in fact able to live openly in a larger city such as Kuala Lumpur. The evidence indicates that there are some gay bars, but other evidence suggests that lesbian and gay people still tend to act discreetly even in Kuala Lumpur. Pride events are not able to take place even in Kuala Lumpur. Prosecutions have reduced, but are still reported to take place in Kuala Lumpur. Widespread state and societal discrimination towards LGBTI people appears to give rise to a climate of fear among LGBTI people, many of whom live discreetly for fear of ostracism, discrimination, violence, or potential prosecution.
66. Due to a lack of information about the extent of discrimination and violent incidents against LGBTI people in Malaysia, it is difficult to assess whether any one of those factors is sufficiently widespread to give rise to a real risk of serious harm. The fact that there is likely to be widespread discrimination, taken alone, is not likely to be sufficient to show that a person would be at real risk of serious harm. Given the large population of Malaysia, there is insufficient evidence to show that there is a real risk of serious harm from violent attacks, albeit they are reported to occur. Given the lower level of prosecutions in Kuala Lumpur, it cannot be said that the evidence shows that a LGBTI person in Kuala Lumpur is likely to be at real risk of serious harm for that reason taken alone.
67. However, when these elements are considered together it creates a cumulative and rather compelling picture of what life might be like for a gay or lesbian person in Malaysia. Given that most LGBTI persons are reported to live discreetly, to live openly is likely to increase the risk of coming to the attention of the authorities or risking societal violence and discrimination.
68. Prevalent discriminatory attitudes towards LGBTI persons are reflected in the rhetoric and actions of the authorities. If a person were to be attacked or was maliciously reported to the police, the evidence shows that it is unlikely that a LGBTI person would receive sufficient protection. Indeed, if their orientation or identity became known, the risk might emanate from the state itself. Although the evidence does not show that the situation for LGBTI people is quite as extreme as a country like Iran, the combination of factors is likely to create a climate of fear and self-repression for LGBTI people in Malaysia. The background evidence suggests that many Malaysians from the LGBTI community hide their sexual orientation or act discreetly to avoid ostracism, discrimination, violence, or potential prosecution. The combination of these factors, when taken together, are sufficiently serious by their nature or repetition to amount to a serious violations of a person’s fundamental human rights.
69. I consider whether the appellant is likely to live openly or not. Past events indicate that she did not feel able to live openly as a lesbian in Malaysia. She hid her relationship with L and was prepared to end it rather than face disapproval and perhaps hostility from her family. She did not feel able to enter into any other relationships. As time went on, continued pressure from her family to get married led to her subverting her sexual orientation to enter into a relationship with a man to conform to societal norms.
70. As discussed in HJ (Iran), the disapproval of her family is not likely to be sufficient to show that the appellant would act discreetly due to a fear of ill-treatment that is sufficiently serious to amount to persecution. However, that is not the whole picture in this case. The appellant clearly was conscious of the fact that same sex acts are criminalised in Malaysia and that there is still a risk, albeit fairly low, of prosecution. The appellant said that she wanted to be ‘good’ and did not want to break the law. This indicates that the mere existence of a law that criminalises same sex acts was sufficient to force her to live discreetly. To live openly as a gay woman would be more likely to attract the attention of the authorities, or risk other people reporting her to the authorities, thereby increasing the risk of prosecution.
71. In the past, the appellant has hidden her sexual orientation and was prepared to either not be in a relationship or to enter into a heterosexual relationship to conform to societal norms. I am satisfied that she did this because she was fearful of what the consequences might be if she lived openly as a lesbian. Some of those consequences might not be sufficient, taken alone, to engage the operation of the Refugee Convention. However, in my assessment, the cumulative effect of the risk of ostracism, discrimination, violence, and potential prosecution over a period of time is sufficient to show that the reason why the appellant would feel forced to repress a fundamental part of her identity would be due to a well-founded fear of persecution. The appellant meets the criteria contained in the last paragraph of Lord Rodger’s test outlined above at [52].
Conclusion
72. For the reasons given above, I conclude that the appellant has a well-founded fear of persecution for reasons of her membership of a particular social ground of ‘LGBTI persons’.
73. The appellant’s removal in consequence of the decision would breach the United Kingdom’s obligations under the Refugee Convention and would be unlawful under section 6 of the HRA 1998.
Notice of Decision
The First-tier Tribunal decision involved the making of an error on a point of law
The decision was set aside and has been remade in the Upper Tribunal
The appeal is ALLOWED on Refugee Convention and Human Rights grounds

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

03 June 2026

ANNEX

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2025-002860
First-tier Tribunal No: PA/67952/2023

THE IMMIGRATION ACTS

Decision & Reasons Issued:

…………………………………

Before

UPPER TRIBUNAL JUDGE CANAVAN

Between

H H
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr A. Briddock, instructed by Milestone Solicitors
For the Respondent: Mr N. Wain, Senior Home Office Presenting Officer

Heard at Field House on 01 September 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity because the case involves a protection claim. 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 appealed the respondent’s decision dated 08 December 2023 to refuse a protection and human rights claim.
First-tier Tribunal decision
2. First-tier Tribunal Judge S. Taylor (‘the judge’) dismissed the appeal in a decision sent on 13 January 2025. The judge noted that the appellant only relied on a claim to fear persecution on grounds of her sexual orientation and not in relation to a past history of domestic abuse [16]. He found that the appellant had given inconsistent accounts regarding her passport, supporting documents, and personal history. Delays in submitting evidence had undermined her credibility [17]-[18]. Internal inconsistencies in her evidence and with supporting evidence also undermined the credibility of her claim [19]-[20]. The appellant did not claim to have suffered persecution due to her sexual orientation in Malaysia in the past [21].
3. The judge considered the evidence of a supporting witness who had only known the appellant since she came to the UK. He said that he knew that she had frequented gay venues. Other supporting evidence showed that she attended LGBTI events, gay bars and venues. The judge concluded that even if she had attended events that was not sufficient evidence of her sexual orientation given that many people attend Pride and LGBTI events, either as supporters or as a cultural event [21]. He was not satisfied that the appellant had produced sufficient reliable evidence to show that she was a lesbian as claimed [21]-[22].
4. In the alternative, the judge found that, even if he accepted her sexual orientation, the background evidence indicated that although LGBTI people might face discrimination in Malaysia, the level of treatment was not sufficiently serious by its nature or repetition to amount to persecution. Those likely to be more at risk were Muslim LGBTI people, but the appellant did not fall into that category. In any event, the appellant could relocate to Kuala Lumpur where there is greater tolerance towards LGBTI people [22]. For these reasons, the judge concluded that the appellant did not have a well-founded fear of persecution for reasons of her membership of a particular social group. Nor did she meet the Article 8 private life requirements of the immigration rules [24].
Upper Tribunal proceedings
5. The appellant applied for permission to appeal to the Upper Tribunal on the following grounds:
(i) The First-tier Tribunal failed to give adequate consideration to or to make adequate findings in relation to the supporting evidence. The long series of internal points refers to the evidence given by the supporting witness, supporting letters from friends, photographs of the appellant at events, evidence given in the appellant’s witness statement, photographs of the appellant with an ex-girlfriend, and evidence of past domestic abuse.
(ii) The First-tier Tribunal failed to take into account relevant evidence when considering the appellant’s credibility with reference to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. This included a large amount of evidence that was submitted to the respondent 6 days after the substantive asylum interview. The judge made a mistake of fact in finding that there was a delay in submitting evidence that damaged the appellant’s credibility.
(iii) The First-tier Tribunal erred in finding that a lesbian woman would not have a well-founded fear of persecution in Malaysia. The judge failed to give adequate consideration to the background evidence.
(iv) The First-tier Tribunal erred in failing to give adequate reasons to explain why the appellant could relocate to Kuala Lumpur or to assess whether it would be unreasonable for her to do so.
(v) The First-tier Tribunal’s finding that the appellant was not a lesbian because (a) she is not an ‘active’ lesbian in a relationship in the UK; and (b) had not suffered serious harm in the past, is irrational.
6. A First-tier Tribunal judge granted permission to appeal in an order dated 28 June 2025.
7. I have considered the First-tier Tribunal decision, the documentation that was before the First-tier Tribunal, the grounds of appeal, and the submissions made at the hearing, before coming to a decision in this appeal. It is not necessary to summarise the oral submissions because they are a matter of record, but I will refer to any relevant arguments in the decision.
8. I bear in mind that judicial caution and restraint is required when considering whether to set aside a decision of a specialist tribunal. In particular, judges of a specialist tribunal are best placed to make factual findings: see HA (Iraq) v SSHD [2022] UKSC 22. Appellate courts should not rush to find misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently: see AH (Sudan) v SSHD [2007] UKHL 49 and KM v SSHD [2021] EWCA Civ 693. Where a relevant point is not expressly mentioned by the tribunal, the court should be slow to infer that it has not been taken into account: see MA (Somalia) v SSHD [2020] UKSC 49. When it comes to the reasons given by the tribunal, the court should exercise judicial restraint and should not assume that the tribunal misdirected itself just because not every step in its reasoning is fully set out: see R (Jones) v FTT (SEC) [2013] UKSC 19.
Decision and reasons
9. This is a borderline decision because, having heard evidence from the witnesses, many of the judge’s findings relating to the credibility of the appellant’s claim to be a lesbian woman were likely to be open to him to make and have not been challenged in the grounds. Most of the first ground of appeal amounts to little more than submissions on the evidence rather than identifying a clear error of law. However, a few of the issues raised in the grounds do give rise to potential errors.
10. First, it is clear from the face of the decision that the judge placed considerable weight on credibility issues identified in section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. These were at the forefront of the judge’s credibility findings. The judge found that the appellant had given an incredible explanation for not producing her passport when asked to do so at an early stage of the claim [17]. The judge went on to give weight to the fact that the appellant had stated at the asylum interview that she had further material to submit including photographs, letters of support and attendance at Pride and other LGBTI events. The judge found that the appellant did not submit the evidence until 3 days before the hearing. It is clear from his findings that this was a matter of real concern to him because he found that the appellant’s delay in submitting evidence when she said that she would do so after the asylum interview ‘seriously adversely affects the appellant’s credibility’ [18].
11. At the hearing, Mr Wain accepted that the evidence showed that it was likely that the appellant’s legal representative did send further documents to the respondent by email on 04 December 2023, a few days after the asylum interview, which took place on 28 November 2023. The respondent failed to consider the evidence in the decision letter, nor was it included in the respondent’s bundle. Hence, the evidence had to be produced in the appellant’s bundle for the hearing. It appears that the judge missed relevant evidence that was before him. In finding that the appellant did not submit evidence to the respondent after the interview, he made an error of fact that clearly affected his view of the appellant’s overall credibility.
12. Second, there is some force in the submission that the judge made inadequate findings in relation to one of the witnesses who attended the hearing. The appellant’s friend JL was also a Malaysian national. He had been recognised as a refugee. Although he did not know the appellant in Malaysia, he could speak to his own experiences as a gay man. He stated that he knew the appellant to have attended LGBTI events and venues in the UK, but was also able to speak to his own opinion as to her sexual orientation, having known her 2 years. Although the judge summarised his evidence at [13], his finding in relation to that evidence was extremely brief. At [21] the judge stated that the supporting witness ‘gave evidence of the appellant frequenting gay venues but not that she had entered into gay relationships’. In fact, JL’s had gone further than that in stating that they had shared with each other the difficulties of having to hide their identities in Malaysia. No findings were made in relation to the depth of that evidence or the credibility of the witness that the judge had heard. Taken alone, this point might not be sufficient to set aside the decision, but I have considered it alongside the other points raised in the grounds.
13. Third, those representing the appellant did not produce full copies of background evidence relied on in the bundle to enable the judge to consider the evidence in context. Instead, only selected references were put in a ‘country schedule’. Nevertheless, it seems that the judge may have considered a full copy of the CPIN report relating to Malaysia, which would be publicly available online [22]. Although the judge should have been aware of the fact that the executive summary of a CPIN report usually reflects the respondent’s view of the evidence, there is nothing in his findings to suggest that he had borne this fact in mind. Perhaps because the judge had already rejected the credibility of the appellant’s claim to be a lesbian he did not consider the background evidence in any depth. However, if he was going to make findings in the alternative, they needed to be adequate.
14. While it was open to the judge to consider evidence which indicated that LGBTI people who were Muslim might be at greater risk, and that there might be more tolerance in large urban areas such as Kuala Lumpur, the judge failed to engage with other evidence relied on by the appellant. In her witness statement the appellant pointed out that homosexuality was still against the law albeit prosecutions were thought to be rare (3.1.10). Conversion therapy practices (CTPs) are promoted by the government (3.1.14). The CPIN report went on to give the respondent’s view that societal discrimination was not sufficiently serious by its nature or repetition to amount to persecution (3.3.1). Members of the LGBTI community were reported to face discrimination, stigma, threats, and violence. Some members of the LGBTI community hide their identity to avoid discrimination and ostracism by their family, who were often the perpetrators of violence (3.3.4). However, few specific reports of societal violence were found (3.3.5). In relation to the availability of state protection, the CPIN report said that the state is able but not willing to provide effective protection (4.1.1).
15. Perhaps because he had rejected the credibility of her claim, the judge did not go on to consider the appellant’s evidence that she would be forced to live discreetly because of her fear of prosecution, violence or discrimination. Nor did he consider the arguments relating to internal relocation, which had been put forward in the appellant’s skeleton argument.
16. Again, the arguments put forward in the third and fourth grounds might not be sufficient to justify setting aside the decision taken alone. However, when they are considered with the points relating to flaws in the First-tier Tribunal’s credibility findings, I am persuaded that the cumulative effect of the errors identified is sufficiently serious to justify setting aside the decision.
17. For the reasons given above, I conclude that the First-tier Tribunal decision involved the making of an error of law. The usual course of action would be for the Upper Tribunal to remake the decision even if significant findings of fact need to be made. The decision as a whole is set aside and will be remade at a resumed hearing in the Upper Tribunal.
Directions
18. The appellant must confirm in writing no later than 14 days from the date this decision is sent the names of any witnesses who will be called at the resumed hearing.
19. The appellant must confirm in writing no later than 14 days from the date this decision is sent whether any of the witnesses require the assistance of an interpreter, and if so, in what language.
20. The parties shall file and serve any up to date evidence that they rely upon no later than 14 days before the resumed hearing.
Notice of Decision
The First-tier Tribunal decision involved the making of an error of law
The decision will be remade at a resumed hearing in the Upper Tribunal

M. Canavan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 October 2025