Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Case No: UI-2025-003470

First-tier Tribunal No:
PA/03331/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 21st of November 2025

Before

DEPUTY UPPER TRIBUNAL JUDGE FROOM

Between

K M
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: None
For the Respondent: Mr A Mullen, Senior Home Office Presenting Officer (by CVP)

Heard on 11 November 2025 at Field House

DECISION AND REASONS
1. The First-tier Tribunal made an anonymity order because this is a protection appeal. I continue that order because the risk of harm outweighs the usual requirement for open justice. As such I am satisfied, having had regard to the guidance in the Presidential Guidance Note No 1 of 2013: Anonymity Orders, that it would be appropriate to make an order in accordance with Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 in the following terms:
“Unless and until a tribunal or court directs otherwise, or the Appellant’s protection claim is finally determined, the Appellant is granted anonymity. No report of these proceedings shall directly or indirectly identify him, any of his witnesses or any member of his family. This direction applies to, amongst others, both the Appellant and the Respondent. Failure to comply with this direction could lead to contempt of court proceedings.”
2. The Appellant appeals with the permission of the First-tier Tribunal against a decision, promulgated on 8 May 2025, of a Judge of the First-tier Tribunal sitting at Manchester (“the Judge”) dismissing his appeal against a decision of the Respondent, dated 9 April 2024, refusing his protection claim.
3. The Appellant appeared unrepresented at this hearing by CVP. He had not filed a bundle and had misunderstood the reason he had been sent a “dummy bundle”, believing this had been sent to him in error because it related to a different case. He wrote to the Tribunal on 7 November 2025 seeking an adjournment “until the court gets its act together and supplies my direction”. The adjournment application was refused by an Upper Tribunal Lawyer on the basis the Tribunal would assist the Appellant by providing a formatted bundle and therefore there would be no unfairness in proceeding. The Appellant responded by enquiring whether he could be assisted by Mr Tony Thomson, his “McKenzie friend”. Mr Thomson attended the hearing with the Appellant and duly acted as his “McKenzie friend”.
4. The Appellant confirmed he speaks English reasonably well and he did not require an interpreter for this hearing.
The First-tier Tribunal decision
5. The Appellant’s asylum claim was based on the risk on return to Malaysia as a gay man. Whilst the Judge found parts of the Appellant’s account of events in Malaysia not credible, he did accept that the Appellant is a gay man. At [23] of the Decision, the Judge states that,
“… But I find the Appellant’s account of his circumstances in Malaysia does not reach the balance of probabilities. There are important discrepancies about his family life and what level of harm he has faced there. Without a credible account of his situation there, I cannot assess risk to him. I dismiss his claim under the Refugee Convention.”
6. Then at [24], he continued in similar vein,
“[The Appellant] has not shown that his claim is reasonably likely to be true. Without a genuine understanding of his circumstances on return, I cannot assess his future risk based only on Malaysia’s background evidence. …”
The appeal
7. The First-tier Tribunal granted permission to appeal because it is arguable there was a misdirection in law in that the Judge did not consider if the Appellant was at risk as a consequence of the finding that he is a gay man.
8. The Respondent has filed a rule 24 response which accepts this error has been shown. I agree. Having found the Appellant was a gay man, it was incumbent on the Judge to go on to consider the risk on return. The well-known case of HJ (Iran) and HT (Cameroon) v SSHD [2010] UKSC 31; [2011] AC 596; [2010] WLR 386 sets out the steps which tribunals should follow (see, for example, [82]). The Judge in this case should have made findings on whether the Appellant would live openly as a gay man in Malaysia, whether this would involve the risk of persecution and whether the Appellant would modify his behaviour as a consequence.
9. That is sufficient to dispose of this appeal, which is allowed.
10. The Respondent’s Rule 24 response also set out reasons opposing the Appellant’s first ground of appeal, which was that the Judge’s adverse credibility finding concerning his experiences in Malaysia was flawed. These findings should be preserved. The Respondent also challenges the Judge’s primary finding that the Appellant is gay, chiefly because of an irrational reliance on the Appellant’s witnesses’ “gaydar”.
11. In discussion with Mr Mullen, he indicated he was content to proceed on the basis the Judge’s decision should be set aside and the appeal should be remitted to the First-tier Tribunal to be heard de novo.
12. In discussion with the Appellant, assisted by Mr Thomson, it was also agreed that I should remit the appeal with no findings preserved.
Error of law
13. The Appellant’s appeal is allowed. The Decision of the First-tier Tribunal dismissing the Appellant’s appeal is set aside.
14. Bearing in mind the general principle set out in statement 7 of the Senior President’s Practice Statements and the guidance in AEB v SSHD [2022] EWCA Civ 1512 (see also MM (Unfairness; ER) Sudan [2014] UKUT 00105 (IAC) and Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC)), I decided to remit this appeal to be heard again by another judge in the First-tier Tribunal.
15. For the avoidance of doubt, none of the findings made by the Judge, either positive or negative, are preserved and the Tribunal will have to make fresh findings on all matters in accordance with the HJ (Iran) steps.
Practicalities
16. The Appellant remains unrepresented at present but can be contacted at his email address: [ ~ ]
17. The Appellant lives in Crewe and Manchester remains the most convenient hearing centre.
18. The Appellant will require the assistance of an interpreter as he will need to give evidence again. He requires a Tamil interpreter of Malaysian origin.

Notice of Decision
The making of the decision of the First-tier Tribunal involved the making of an error on a point of law and the decision of the First-tier Tribunal dismissing the Appellant’s appeal is set aside.
The appeal is remitted to the First-tier Tribunal to be heard again by another judge.

Signed
N Froom

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

Dated 11 November 2025