Tribunal decisions

The decision

IN THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER Case No: UI-2026-003132
First-tier Tribunal No: PA/03331/2024

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 16th of September 2026

Before

UPPER TRIBUNAL JUDGE KHAN

Between

K M
(ANONYMITY ORDER MADE)
Appellant
and

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent

Representation:
For the Appellant: Mr Wood, Legal Representative, Immigration Advisory Service (IAS)
For the Respondent: Mr Sheikh, Senior Home Office Presenting Officer

Heard at Field House on 3 September 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
Introduction
1. The appellant is a national of Malaysia. By these proceedings he appeals with permission against the decision of the First-tier Tribunal by which his protection appeal was dismissed.
2. On 20 February 2023, the appellant claimed asylum in the United Kingdom. The respondent refused that claim in a letter dated 09 April 2024, and the appellant brought an appeal. The appeal was originally heard by the First-tier Tribunal and was dismissed on all grounds in a decision promulgated on 08 May 2025.
3. The appellant appealed to the Upper Tribunal. The respondent in a Rule 24 response acknowledged that the First-tier Tribunal had made a material error by failing to determine the extent to which the appellant would wish to be open about his sexuality on return to Malaysia, and consequently whether his behaviour would place him at risk of serious harm or persecution. The Upper Tribunal remitted the case back to the First-tier Tribunal for a fresh hearing with the sole preserved finding of fact being that the appellant was a gay man.
4. In a determination promulgated on 17 February 2026 the appellant’s (remitted) appeal was dismissed, following an oral hearing, by First-tier Tribunal Judge Alis (‘the judge’).
5. Permission to appeal (again) to the Upper Tribunal was granted by Upper Tribunal Judge Hoffman on 02 July 2026 on all grounds.
6. The matter now comes before me to determine whether the First-tier Tribunal erred in law, and if so whether any such error was material and whether the decision of the First-tier Tribunal should be set aside.
7. The appellant and respondent were ably represented by Mr Wood and Mr Sheikh, respectively. I am grateful to them for their very helpful submissions. The appellant joined the hearing remotely and confirmed that he was able to hear the proceedings clearly.
8. The First-tier Tribunal made an anonymity direction and that direction is maintained.
Grounds
9. Permission was granted on two grounds.
10. First, that it was arguable the judge erred in concluding the appellant would not face persecution on return to Malaysia on the basis that he would live discreetly as a gay man, because, no consideration was given to the reason why he would live discreetly in Malaysia – for example, was this due to fear of persecution or for some other reason.
11. Second, the judge found based on the country evidence (CPIN Paragraph 3.1.3) that because the appellant is Hindu, he was unlikely to be prosecuted. However, it was arguable that the CPIN did not go that far because on its face, it does not state that only Sharia courts exercise jurisdiction over offences relating to same-sex acts.
Submissions
12. Mr Wood for the appellant submitted that the judge’s findings at [42]-[43] failed to take into account the poor treatment the appellant described he received in Malaysia at paragraph 20 of his witness statement dated 14 February 2025. Such treatment included shouting at him and beatings in public while out socialising in Kuala Lumpur with friends. As this was a protection claim, it was incumbent on the judge to apply anxious scrutiny when assessing the claim.
13. Mr Wood further submitted that the judge did not properly apply the legal test in HJ (Iran) and HT Cameroon) v SSHD [2010] UKSC 31, because having found the appellant would conduct himself discreetly [46], the judge failed to establish the reason why the appellant would behave in that manner. Finally, Mr Wood submitted that the country evidence did not establish that the appellant would be immune from prosecution on account of him being a non-Muslim.
14. Mr Sheikh submitted on behalf of the respondent that there was no permitted appeal ground asserting inadequate reasoning and this evolving ground should not be allowed. In any event, however, the judge expressly stated that he had taken account of the evidence as a whole [33].
15. Further, the judge properly applied HJ (Iran) to conclude on the evidence [39]-[44] that the appellant would live discreetly in Malayasia as he had done in the UK.
Findings and Reasons
16. 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.
17. 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.
18. Before turning to address the grounds, it is important to recall the legal principles relevant to this case which were set out by Lord Rodger in HJ (Iran):
“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…..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 gay man, then, other things being equal, his application should be accepted. Such a person has a well-founded fear of persecution…….’
19. I now turn to address the grounds which fall to be considered based on the legal principles of HJ (Iran).
20. In respect of the first limb concerning the appellant’s sexual orientation. it was a preserved fact that the appellant is gay. The judge recalled this fact at [4]. As a result, the first limb is met.
21. The second limb required the judge to consider whether the appellant would be persecuted if he lived openly as a gay man in Malaysia. The judge expressly found that the appellant would not be prosecuted for being a gay man by the authorities [37] and that he had not previously suffered past persecution [42] based on the reasoning below.
22. The judge considered the issue of persecution at [41]-[46]. The judge recorded that the appellant claimed he was openly living as a gay man and that he wished to do so if returned, but the only thing preventing him from doing so was his fear of persecution.
23. It is clear from the appellant’s evidence that he considered he would not be able to live openly if returned to Malaysia on account of his fear of persecution. The obvious inference being that he would have to live discreetly if returned, otherwise he would be liable to persecution.
24. At [42] the judge went on to consider how the appellant would live if returned by reference to how he lived previously in Malaysia and the UK. The judge recalled the appellant had not detailed any issues with the Malaysian authorities in his oral evidence even though his sexuality was not a secret, save to mention that the authorities had fined him. However, noting this latter evidence had not previously been mentioned at interview or at the earlier appeal hearing, the judge found the appellant had added the new element of a fine to bolster his claim.
25. At [43] the judge reviewed the appellant’s behaviour in the UK and found he had not provided any supporting evidence of his activities. There was no evidence from the appellant’s social media accounts (Facebook, Instagram, and Grindr) and no evidence of any involvement in LGBTI activities in Liverpool or Manchester, nor any photographic or telephone evidence of the claimed relationship with Tony.
26. The judge also considered the relevant country evidence. At [35]-[36] the judge mentioned that the 2021 Federal Court ruling declared the criminalisation of same sex relations as unconstitutional albeit that it had not led to a broader decriminalisation or significant legal reforms.
27. The judge considered the relevant CPIN (Country Policy Information Note): Sexual orientation and gender identity or expression, Malaysia, July 2024, and concluded that non-Muslim gay men were generally not subject to persecution but could still face legal challenges and potential prosecution under the Penal Code. However, as a Hindu, the judge did not find it reasonably likely that the appellant would face prosecution for simply being a gay man. That was on the basis that the Federal Court decision made it clear that being homosexual should not be criminal offence and the fact that the appellant was Hindu made it even less likely there would be a prosecution for being homosexual.
28. Returning to the legal principles in HJ (Iran) it is clear that the judge found that limb two was not met for the reasons stated at [35]-[36] & [41]-[46]. In my view, having found that the appellant would not be exposed to a real risk of persecution if he was to live openly as gay man in Malaysia, it is axiomatic that the judge was not required to go on sequentially to consider any further limbs in the HJ (Iran) test, which would have included enquiring as to whether the applicant would live openly and be exposed to a risk of persecution or whether he would live discreetly to avoid the risk of persecution or live discreetly simply because that is how he himself would wish to live.
29. The judge found the appellant did not suffer violence or persecution in Malaysia although he may have fallen out with family (limb two) and that he lived discreetly in Malaysia and also in the UK [46]. On this basis, the judge went on to find there was no reason to believe that the appellant would do anything differently in Malaysia. Such findings were unarguably open to the judge on the evidence and are not challenged in the permitted grounds of appeal.
30. What is challenged is the asserted failure by the judge to enquire ‘why’ the appellant would live discreetly if returned to Malaysia. In my view this ground is misconceived and fails to properly understand how the judge has undertaken his assessment of the totality of the evidence which I have set out above.
31. Paragraph [46] constitutes a distillation of the judge’s findings flowing from an assessment of the totality of the evidence and should not be read in isolation of the reasoning in the earlier parts of the decision that ultimately led to the findings at [46].
32. There was no reason for the judge to specifically enquire as to ‘why’ the appellant would live discreetly if returned to Malaysia because the judge had already found in considering limb two of HJ (Iran) that the appellant had not previously been subject to persecution and, taken together with the country evidence would be unlikely to face persecution on return in the future if he wished to live openly as a gay man.
33. Accordingly, there was no reason for the judge to enquire in accordance with the further limbs of HJ (Iran) whether the applicant would live openly and be exposed to a risk of persecution or whether he would live discreetly to avoid the risk of persecution or live discreetly simply because that is how he himself would wish to live. That part of the HJ (Iran) test was no longer applicable as a result of the judge’s negative finding of persecution or serious harm towards the appellant in response to limb two.
34. It follows that ground one is misconceived and is not made out. The judge correctly applied the legal test in HJ (Iran) and followed through the limbs sequentially to the extent that they applied to the appellant’s case.
35. In respect of ground two, the appellant submits that the judge was in error by inferring that under paragraph 3.1.3 of the CPIN, the appellant, as a Hindu, faced no risk of persecution under Malaysia’s Penal Code.
36. It is clear from the decision at [35]-[36] that the judge did not base his conclusion that it was unlikely that the appellant as a Hindu, would be prosecuted for being a gay man under the Penal code solely on the CPIN. The judge also referenced the 2021 Federal Court decision and was clearly aware of the wider country context in reaching his findings at [36] which were unarguably open on the evidence.
37. For the foregoing reasons, it follows that ground two is also not made out. The appeal must therefore be dismissed.
Notice of decision
The decision of First-tier Tribunal Judge Alis promulgated on 17 February 2026 did not involve the making of an error of law. The appellant’s appeal is dismissed.

K. A. Khan
Judge of the Upper Tribunal
Immigration and Asylum Chamber

14 September 2026