Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Case No: UI-2025-005163

First-tier Tribunal Nos:
PA/50302/2024
LP/12680/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:
On 6th February 2026

Before

UPPER TRIBUNAL JUDGE RUDDICK

Between

HL
(ANONYMITY ORDER MADE)
Appellant
and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Ms N. Ahmad, instructed by Victoria Solicitors Limited
For the Respondent: Mr E. Terrell, Senior Home Office Presenting Officer

Heard at Field House on 6 January 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
1. The appellant appeals with permission against the decision of the First-tier Tribunal (“FTT”), dated 27 September 2025, which dismissed her human rights and protection appeal.
2. The appellant was not granted anonymity by the FTT but I consider that that an anonymity order is required by section 1 of the Sexual Offences (Amendment) Act 1992 because it is accepted that the appellant has been a victim of rape.
3. The appellant is accepted to be a lesbian from South Korea and to have been pressured by her family into cohabiting with a man as his fiancée. It is also accepted that she was subjected to gender-based violence, including rape and beatings, during the two years of their cohabitation. Other aspects of her account have not been specifically accepted, but they have not been challenged. These include that after she left her fiancé, he outed her on social media, sent her harassing and threatening messages, and tried to track her down. As a result of being outed, she suffered ostracism and verbal abuse at work, which led her to leave her employment, and received abusive messages from strangers.
4. The appellant says that her ex-fiancé would seek to harm her if she returned to South Korea, and that neither her family nor the police would protect her, due to widespread homophobia and misogyny in South Korean culture. In terms of her fears of harm from the wider society, she submitted evidence that there were active, committed movements against (as well as for) LGBTQ+ rights, neither same-sex marriage nor adoption were legal, and efforts to enact legal protections against discrimination on the basis of sexual identity had stalled in the face of determined opposition. Her evidence also included reports of gay men and lesbians who had been rejected by their families, fired from their employment, denied services, and subjected to discrimination, bullying, harassment, conversion practices and even serious acts of violence. Various news articles and reports further stated that the majority of LGBTQ+ individuals conceal their sexual identity out of fear of various different forms of harm and suffer significant mental health problems.
5. The appellant says that for these reasons she is a refugee, because she would be at risk of persecution from her fiancé, her family and society on return to South Korea. She said in her appeal statement that she would “never be able to live freely as my true self” in South Korea and could “never establish a family with a same-sex partner”, and in her skeleton argument below, it was argued that there would be very significant obstacles to her reintegration and her removal would have unjustifiably harsh consequences.
6. The respondent’s position is that the appellant would have access to state protection against harm from her family and her fiancé, and that she could also relocate safely within South Korea. The appellant’s claim that she was “compelled to conform to conventional expectations of Korean society, which dictated that she should marry a man and start a family” was “not relevant” because she “had not demonstrated that they would be persecuted for going against the conventional expectations of sexuality which exists around the world.” It is not entirely clear what the respondent is trying to say here, but it is not necessary for me to figure that out for the purpose of this decision. The respondent further argued that the appellant’s evidence failed to establish that there was widespread discrimination against “homosexuality” in South Korea or that the treatment she feared would rise to the level of persecution. There were no significant obstacles to her reintegration.
The challenged decision
7. The structure of the challenged decision is difficult to follow. The section entitled “Findings” begins at [10] with the statement, “Firstly, I considered whether the A [the appellant] has a well founded fear of persecution on the basis of her being a member of the LGBT [sic].” The FTT then sets out the respondent’s position, including that:
(i) “The A according to R [the respondent] has to show that the treatment would amount to persecution as defined not only in South Korea.”: [10];
(ii) “R states in the claim of A that she was made to conform to behave [sic] in a conventional manner in her country is not relevant to ascertaining whether she was persecuted.”: [10];
(iii) The appellant had not “demonstrated that she would be persecuted for going against the Convention [sic] and traditional mode of behaviour.”
(iv) The appellant claimed that homosexuality was viewed by society as a disability or a medical condition, but she had not shown that she would be “persecuted as a result thereof”: [11];
(v) The fact that same sex marriage and adoption were illegal did not amount to persecution: [12];
(vi) Police protection would be available, as evidenced by an incident in which the police had offered protection to a pride event: [12];
(vii) The “people taking part in the demonstrations [which demonstrations is not clear] are non-state actors and have no influence in the country”; and
(viii) The appellant had not shown that her parents and her ex-fiancé had “sufficient influence to prevent A from re-locating within the country.”: [13]
8. The FTT nowhere says what it makes of the respondent’s position, some of which is either incoherent (such as the reference to “persecution as defined not only in South Korea”) or wrong in law (such as that being made to conform to conventional expectations by, in this case, becoming engaged to a man who subsequently raped and beat her, is “not relevant” to the question of whether a person has been persecuted).
9. The FTT makes its first finding at [13]. This is with regard to the risk to the appellant from her family and her fiancé:
“I am of the view that the A has not provided evidence that she would have to hide if she were to return because no evidence ex fiancée is interested in her or that he or her parents have the resources or influence to prevent her from relocating internally.”
10. Findings about persecution by others follow at [14] and [15]. The FTT notes that the appellant claimed that she was forced to leave her employment due to discrimination. The FTT then makes two assertions about the appellant’s case:
(i) “The A concedes in the oral submissions and skeleton argument that there is a lack of cases/examples of persecution.”: [14]; and
(ii) “The A in her evidence admits that there is no evidence subjectively and objectively of a person suffering providing evidence [sic] of persecution.”: [15]
11. The FTT then concludes at [15]:
“I am of the view that the A has not provided evidence that she will suffer persecution in her country as a consequence of her sexual orientation the people that she fears are non -state actors and I have not been provided with any evidence that they have any influence or power in the country.”
12. The FTT then proceeds to consider “the appellant’s claims of domestic violence” and to dismiss it as not “amounting to persecution for the following reasons”. The first “reason” is that the “claims of domestic violence do not amount to persecution.” No reason is given for this, and a reason was clearly necessary, given both the seriousness of the harm suffered (beatings and rape) and the long-established legal principle that domestic violence is capable of constituting persecution: See, e.g.: Islam v. Secretary of State for the Home Department Immigration Appeal Tribunal and Another, Ex Parte Shah, R v. [1999] UKHL 20.
13. The FTT then found in the alternative (“in any event”) that the appellant had not shown that “the police are unwilling to offer him [sic] protection”: [16]. There was a lack of evidence that the appellant’s fiancé was still interested in her, and she had not shown that police protection would unavailable, citing statutes passed in 1997 ([17]). The FTT concluded at [17]:
“The appeal is also dismissed on domestic violence because the state has sought to address this issue and the A has not provided evidence that the A has a genuine fear of persecution.”
In spite of the reference to the genuineness of the appellant’s fear, I read this as a finding that the appellant’s fear was not objectively well-founded.
14. At [18]-[19], the decision contains two paragraphs that bear no relationship to this appellant. They make findings on the basis of country evidence about Malaysia and then, on the basis of those findings and the facts that the appellant was “born in Malaysia and has resided there for the majority of his life”, concludes that the appellant would be at risk of discrimination but not persecution on return to Malaysia and would be able to re-integrate into Malaysian society on return.
15. The decision concludes with brief reasons for dismissing the appellant’s article 8 claim outside the rules.
The grounds of appeal
16. The appellant raises four grounds of appeal:
(i) The multiple references to the appellant as “him” and to the country of origin as Malaysia meant that the decision “confused, inconsistent and not based on material facts of gender and country of origin rendering the decision unsound in its entirety.”
(ii) The FTT erred by expecting corroborative evidence of risk at [13] and [15], when such evidence was unlikely to exist and was not required. Reliance was placed on MAH v Secretary of State for the Home Department [2023] EWCA Civ 216.
(iii) The FTT’s conclusion that the objective evidence demonstrated only discrimination and not persecution was irrational because it was based on evidence about Malaysia and ignored the appellant’s own personal experience and the country evidence, in particular the evidence that same-sex marriage and adoption were illegal;
(iv) The FTT had failed to consider whether internal relocation would be reasonable for this particular appellant, given her accepted history of domestic violence, and had also failed to take into account that history in its consideration of obstacles to reintegration.
17. The respondent filed a Rule 24 response. She argued that:
(i) Ground One: The references to Malaysia were mere typographical errors; the appellant had failed to point to any specific evidence about Malaysia that the FTT had relied on. In any event, this error was not material;
(ii) Ground Two: the burden of proof was on the appellant to provide evidence of risk on return, and MAH (Egypt) did not absolve the appellant from this responsibility. Moreover, as stated in the determination, the appellant had accepted that she could not provide “subjective or objective evidence of persecution on the basis of sexual identity in South Korea.”
(iii) Ground Three: There was no error in not finding the illegality of same-sex marriage and adoption amounted to persecution. The respondent relied on HJ (Iran) v Secretary of State for the Home Department (Rev 1) [2010] UKSC 3 at [35](c): “the Convention was not directed to reforming the level of rights in the country of origin.”
(iv) Ground Four: The references to Malaysia were simply a mistake, as shown by the fact that the FTT had referred to the skeleton argument and to a Human Rights Watch report. Nor was the FTT required to consider that the appellant might be vulnerable because of the abuse she had suffered because there was no medical evidence and this had not been raised below.
The Hearing
18. At the hearing before me, I had sight of the appellant’s bundle, of 139 pages, filed on 17 December 2025, and the respondent’s Rule 24 Response, dated 12 November 2025.
19. I then heard submissions first from Mr Ahmad and then from Mr Terrell. I am grateful to both representatives for the concision and focus of their submissions. Although I do not set them out in full here, I confirm that I have taken them into account, and I will refer to them where relevant in the discussion below.
20. At the end of the hearing, I announced my decision that the decision of the First-tier Tribunal was infected by significant errors of law, requiring it to be set aside in its entirety and that, given the amount of fact-finding required, the appeal would be remitted to the First-tier Tribunal for a fresh hearing on all issues. I gave a brief summary of my reasons, which I now set out in more detail below.
Discussion
21. I am keenly aware of the principles of appellant restraint set out cases including Ullah v Secretary of State for the Home Department [2024] EWCA Civ 201, at [26], Yalcin v SSHD [2024] EWCA Civ 74, at [50] and [51], Gadinala v SSHD [2024] EWCA Civ 1410, at [46] and [47] and Volpi & Anor v Volpi [2022] EWCA Civ 464, at [2-4], amongst others. Even bearing those principles in mind, I find that this decision must be set aside in its entirety.
22. At the hearing before me, Mr Terrell conceded that the FTT’s multiple references to Malaysia at [18]-[19] were clearly more than typographical errors. There are references to Malaysia throughout both paragraphs, and although there are references to the appellant’s skeleton argument and to a Human Rights Watch report, nothing specific is said about the contents of these documents and therefore there is no basis for concluding that the FTT was not doing what it said it was doing, namely making findings based on evidence about Malaysia. The fact that the appellant is referred to as a man rather than a woman at the end of [19] provides further evidence that this section of the decision was, as the appellant contends, simply cut and pasted from a different decision.
23. At the hearing before me, these paragraphs were treated as relating only to the appellant’s claim based on Para. PL 5.1 (b) of the Immigration Rules (formerly Para. 276ADE), as well as article 8 outside the rules. Having carefully reread the decision, I have come to a different view. Although [19] deals with Para. 276ADE, [18] deals with the issue of whether the discrimination that the appellant would face on return would rise to the level of persecution and therefore represents a second decision on the appellant’s asylum claim, and one that was materially flawed because it was based on evidence about a different appellant.
24. Nor is the determination rescued by the fact that the FTT had already given reasons for dismissing this appellant’s asylum claim at [15]. This is because that finding was based on a fundamental misstatement of the appellant’s case. Contrary to what is said at {14] and [15], it was the appellant’s case that she would be at risk of persecution for reasons of her sexual identity on return, and she had provided both “subjective” and “objective” evidence of this. There was no evidence before me of the oral submissions below, and Ms Ahmad could not assist, as she had not been instructed. However, the skeleton argument below clearly submitted that the country evidence relied established that “LGBT people are discriminated and persecuted in South Korea.” As to the appellant admitting “in her evidence” that there was no evidence “subjectively […] of a person suffering […] persecution”, this is difficult to reconcile with the fact that the appellant’s evidence of events in South Korea was unchallenged, and included the following:
“Ever since my ex-fiancé realised that I am a homosexual, he felt humiliated, and it hurt his pride; her started abusing me whenever he got drunk. It started with verbal abuse and to the extent of physical abuse. He raped me and hit me, but I was left without help and support [….]
“I was worried that if I reported my ex-fiancé to the police, I would be subjected to even worse abuse as punishment for disobeying him [….] Despite telling my parents and seeking help from them, they have only turned a blind eye to me and blamed the fault on me [….] My parents think that abusive behaviour is a corrective method for husband and wife, and it is a norm so they have only asked me to cope with it. I was forced to live with him.”
25. She gave a similar account at her asylum interview. She also said in her statement that after her ex-fiancé outed her on social media, she was ostracised and verbally harassed at work, leading her to give up her employment, while in her interview she mentioned receiving abusive texts from “lots of strangers”. None of this evidence has ever been challenged.
26. The appellant’s “objective” evidence, as noted above, contained reports of LGBTQ+ individuals being evicted, losing their jobs, being subjected to verbal and physical violence and suffering from mental ill health as a result. The evidence was not all in one direction. There was also evidence of a committed and growing movement in defence of LGBTQ+ rights and, as the FTT recorded at [12], the respondent had cited evidence of at least one clear instance of police protection. As Ms Ahmad accepted at the hearing before me, it might have been open to the FTT to find that the appellant would not be at risk of future persecution on the grounds of her sexual identity because police protection and internal relocation would be available, and that the evidence of incidents of harm from non-state actors was too limited and the harm in most cases insufficiently serious to rise to the level of persecution. But this is not what the FTT did. The FTT asserted that the appellant had either conceded the point or offered no relevant evidence, which is plainly not the case. The only country evidence it then considered concerned Malaysia.
27. For these reasons, I conclude that Grounds One and Ground Three are made out because the FTT’s findings about the treatment that the appellant would face on return were not based on the evidence before it. These findings are equally relevant to the appellant’s asylum claim, her claim under Appendix Private Life of the Immigration Rules and her article 8 claim outside the Rules. As noted above, it may have been open to a reasonable judge to dismiss the appellant’s appeal on the evidence before it, and the asylum aspect of the claim in particular. However, the evidence was not so insubstantial that, had it been considered, no reasonable judge could have allowed the appeal, and the test for materiality is therefore met. Moreover, it is clearly in the interests of fairness, justice and the rule of law that the appellant’s appeal be determined by a judge who has had regard to her evidence.
28. It was agreed at the hearing before me that, having found that Grounds One and Three were made out, I did not need to reach a decision on Grounds Two and Four.
29. Taking into account the guidance set out in Begum (Remaking or remittal) Bangladesh [2023] UKUT 00046 (IAC) and AEB v SSHD [2022] EWCA Civ 1512, as well as the Practice Statement of 11 June 2018, and I consider that remittal to the FTT is appropriate given the extensive fact-finding required.

Notice of Decision
The decision of the First-tier Tribunal dated 27 September 2025 is set aside in its entirety and the appeal is remitted to the First-tier Tribunal for a fresh hearing on all issues before any other judge.

E. Ruddick

Judge of the Upper Tribunal
Immigration and Asylum Chamber

29 January 2026