Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-004651

First-tier Tribunal No: PA/62736/2023
LP/00717/2025

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 29th of January 2026

Before

DEPUTY UPPER TRIBUNAL JUDGE SYMES

Between

CKL
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr J Gazzain
For the Respondent: Mr E Tufan

Heard at Field House on 1 December 2025

Order Regarding Anonymity

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the appellant is granted anonymity.

No-one shall publish or reveal any information, including the name or address of the appellants, 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. This is the appeal of CKL, a citizen of Malaysia born 8 January 2023, against the decision of the First-tier Tribunal of 3 August 2025 dismissing his appeal, itself brought against the Respondent’s refusal of his asylum claim (made on 18 November 2020 and refused on 24 November 2023). His partner and two children are dependent on the appeal.
Background
2. The essence of his claim is that that he was subjected to physical and verbal assault in Malaysia in the hands of Malaysian Islamic Party (“PAS”) and authorities and that he would face a real risk of arbitrary detention, arrest, prosecution, and risk of harm upon his return to Malaysia in the hands of the authorities and the Islamic groups there. In September 2004 he had been beaten up by suspected PAS members following a discussion at a restaurant where he was overheard questioning why it was the Chinese community did not receive fair and equal treatment in Malaysia. A few days later local Malays came to his home and threatened to kill him if he repeated such comments.
3. A Special Branch officer then attended his home on the pretext of a public order offence and arrested him; he was detained for a week, poorly fed, stripped naked and beaten; he was warned that he could be arrested for any future misdemeanours.
4. He arrived in the UK by air on 17 April 2006 and was granted a visitor visa until 17 October 2006. He subsequently overstayed until making his November 2020 asylum claim. Whilst in the UK he learned of police interest in him back in Malaysia in July 2006, the beginning of 2007, in 2012 and in 2015.
The Appeal to the First-tier Tribunal
5. The First-tier Tribunal noted the country evidence that some forms of free speech were criminalised in Malaysia and that police powers were abused in relation to political opponents of the authorities, though it could detect no evidence of the targeting of ordinary civilians as opposed to some internet users. It found that
(a) The timing of the asylum claim was suspect as the Appellant could not explain why it was he was able to receive guidance on claiming asylum in 2020 but not sooner, having been in the UK for many years already.
(b) His claim to suffer brain fog due to long Covid was not borne out by the medical evidence.
(c) His account was generally beset by inconsistencies, contradictions and unclear and vague responses, including as to when he first became aware that the police were still interested in him in Malaysia.
(d) He was vague in his description of his assailants in 2024.
(e) It was implausible that his attendance at London demonstrations would have come to official attention abroad.
6. The Judge addressed the Appellant's private and family life claim under the general heading of “insurmountable obstacles”. She noted that it was generally in the best interests of children to be with both parents and to have stability and continuity of social and educational provision. The youth of the children (one having just started the school, the other being yet to commence their studies) indicated they had no real private life outside the family unit. They spoke Mandarin and Cantonese to their parents at home; it was in their best interests to continue to live with both their parents but it was not of particular significance whether that was in the UK or Malaysia. They would have both the Appellant’s extended and close family and that of his wife in Malaysia to provide practical and emotional support as well as a network for reintegration. He had friends in the UK who he said had supported him to a degree here, who could continue to do so if he returned home. He and his wife had both worked in the past in Malaysia and could presumably do so again. Having regard to the statutory factors set out in the NIAA 2002, they had very significantly overstayed their visas, any English language ability was neutral, they were at risk of becoming a burden on public funds given they relied on the kindness of strangers for support, and their children could integrate with their parents’ support in Malaysia even if departing their lifestyle in the UK would be something of a shock at first.
The Appeal to the Upper Tribunal
7. Grounds of appeal contended that the First-tier Tribunal erred in law by
(a) Accepting the Appellant's account of publicly expressing his political opinion in the past (at a dinner) but failing to determine whether he might face a repetition of the ensuing mistreatment (if he spoke out again) given the country evidence of the repression of free speech, and thus failing to apply the doctrine set out in HJ Iran [2010] UKSC 31).
(b) Analysing the Appellant's private life claim by reference to insurmountable obstacles rather than very significant obstacles to integration.
8. Permission to appeal was granted on 3 October 2025 on the basis that confusion between the tests as contended by the second ground was an arguable error of law; the judge was not satisfied that the first ground demonstrated a material error of law but nevertheless permission to appeal was not restricted.
9. For the Appellant Mr Gazzain developed those grounds. He admitted that the only evidence in the Appellant's various expositions of his claim to suggest he wished to express his political opinions on a return to Malaysia was in his supplementary witness statement. There was a real difference between facing “insurmountable obstacles” and “very significant obstacles to integration” in that the former focussed on the difficulties surrounding family life whereas the latter looked at the Appellant’s own situation. As Holgate LJ stated in AA (Morocco) [2025] EWCA Civ 144, a Tribunal must properly determine each element of a human rights claim in a logical sequence; but here the First-tier Tribunal had failed to do so. The fact that some of the evidence was relevant to more than one of the Appellant's claims did not alter the need for the Tribunal to ensure that the relevant legal tests for each claim were applied separately.
10. For the Respondent Mr Tufan noted that permission on the HJ Iran point had been granted with minimal enthusiasm and there was no evidence to suggest any repetition of the problems he had previously experienced. Any infelicity in the headings for the tests applied to assess the various aspects of the Appellant's private and family life were not material.
Analysis
11. The Appellant’s first ground of appeal was of course the subject of a very equivocal permission grant. That is understandable. It arises in the context of the Appellant’s first overt indication of holding strong views the suppression of which might raise fundamental rights issues appearing in his supplementary witness statement for the appeal hearing below, where he states:
“I do not wish my views with regard to equality and human rights for ethnic Malaysians to be stifled. I wish to freely express my views and know that these views would need to be kept silent in Malaysia … I do not wish to suffer violence on account of expressing my opinions which I have done in the past in Malaysia.”
12. Of the Appellant's case on this point the First-tier Tribunal stated §55:
“I am not satisfied that the Appellant has any significant level of political sentiment such that he will be compelled to repress himself if returned for fear of persecution. I am fortified in this view by the limited nature of any activism since he came to the UK which does not extend beyond attendance at a number of protests.”
13. In principle one can imagine a case where a genuine opinion is held as to the manner in which society operates, suppression of which would raise issues under the well-known doctrine in HJ (Iran). However here the First-tier Tribunal found that the Appellant evinced no political beliefs after the restaurant incident (and subsequent detention) from September 2004 until April 2006 before he left Malaysia, and held no particular convictions from April 2006 until the present date. I have just set out his assertion of a wish to express himself in a particular way in the future; but that was the very evidence which the Tribunal rejected by reference to the chronology I have just noted.
14. As to the second ground, it is very difficult to see any material evidence that was overlooked. Doubtless a structured consideration of an ECHR Art 8 claim that reflects the executive’s manner of approaching those claims is generally desirable as identified in AA (Morocco), but whether a failure to do so is a material error of law depends on the available evidence.
15. The Appellant’s claim to face very significant obstacles to integration in Malaysia fell to be considered as one facet of how the Immigration Rules choose to structure consideration of an ECHR Art 8 claim. His claims to have faced political problems in Malaysia were largely rejected save for a single historic incident. He has lived and worked in Malaysia albeit some years ago and is familiar with life there. As a matter of plain common sense there is no real difference between facing very significant obstacles to integration as opposed to insurmountable obstacles to family life abroad, in a case where the ECHR Art 8 ties in this country are asserted as arising from long-term overstaying in a community in the UK with one’s partner and minor children. Unsurprisingly Whipple LJ in EI [2025] EWCA Civ 556 §§45-47 expressly found that a mistake in confusing those two tests was not material where ECHR Art 8 had otherwise been thoroughly addressed. Here there was no material family life arising outside the family unit itself and their lives here had been established in circumstances of the most extreme precariousness.
16. I conclude that there is no material error of law in the First-tier Tribunal’s treatment of the Appellant’s ECHR Art 8 rights.
Notice of Decision
The decision of the First-tier Tribunal did not involve the making of an error of law.
The appeal is dismissed on all grounds.

Mark Symes

Deputy Judge of the Upper Tribunal
Immigration and Asylum Chamber

26 January 2026