United Kingdom Immigration and Asylum (AIT/IAC) Unreported Judgments

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IN THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER

Case No: UI-2024-003518 First-tier Tribunal No: PA/55502/2022 LP/03061/2024

 

THE IMMIGRATION ACTS

Decision & Reasons Issued:

On 12 March 2025

 

Before

 

UPPER TRIBUNAL JUDGE BLUNDELL

DEPUTY UPPER TRIBUNAL JUDGE HOSHI

 

Between

 

MKW

(ANONYMITY ORDER MADE)

Appellant

and

 

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Appellant: Allan Briddock, instructed by Milestone Solicitors

For the Respondent: Amrika Nolan, Senior Presenting Officer

 

Heard at Field House on 11 February 2025

 

Order Regarding Anonymity

 

Pursuant to rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008, the anonymity order made by the First-tier Tribunal shall continue in force. 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. The order was made - and is continued - because this appeal relates to an application for international protection.

DECISION AND REASONS

1.              The Upper Tribunal issued its first decision in this appeal on 16 December 2024. It found that the First-tier Tribunal had materially erred in law in dismissing the appellant's appeal. The First-tier Tribunal's decision was set aside, and it was directed that the decision on the appeal would be remade by the Upper Tribunal following a further hearing. This is the remaking decision following that further hearing.

BACKGROUND

2.              The appellant is a Malaysian national who was born in 1994. He entered the UK on 4 November 2015. He was granted leave to enter as a visitor for 6 months. He overstayed upon the expiry of his leave. He was encountered by immigration officials on 15 January 2018 and arrested. On 3 September 2018, he made a protection and human rights claim on the basis that he was a gay man who feared return to Malaysia for that reason. His application was refused on all grounds on 18 November 2022. The respondent accepted that the appellant was gay and that there would be no sufficiency of protection on return, but found that he would not face persecution on return to his home area or could safely and reasonably relocate to Kuala Lumpur ("KL").

PROCEEDINGS ON APPEAL

3.              The appellant appealed to the First-tier Tribunal. His appeal came before Judge Atkins on 17 May 2024. Judge Atkins dismissed the appeal on all grounds, on the basis that the appellant would choose to live discreetly in Malaysia because of societal pressure rather than fear of persecution and could, in any event, safely and reasonably relocate to KL if necessary (the decision is dated 31 August 2024, but this date appears to be a typographical error - it was uploaded to MyHMCTS on 31 May 2024).

4.              The appellant applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal. His application was granted by Judge Elliott by a decision dated 29 July 2024. His appeal came before Judge Blundell for an error of law hearing on 21 November 2024. By a decision dated 28 November 2024, issued on 16 December 2024, Judge Blundell found that Judge Atkins had materially erred in law in dismissing the appellant's appeal. He set aside Judge Atkins' decision and directed that the decision on the appeal would be remade by the Upper Tribunal following a further hearing. That hearing took place before us on 11 February 2025.

HEARING

5.              We had before us a consolidated bundle of 819 pages and a skeleton argument by Mr Briddock. The consolidated bundle had been filed in advance of the 21 November 2024 error of law hearing, accompanied by a rule 15(2A) application because it contained public domain country evidence that post-dated the decision of Judge Atkins. Notably, this evidence included the respondent's new 'Country policy and information note: sexual orientation and gender identity or expression, Malaysia' (v.2, July 2024) ("the July 2024 CPIN"). Ms Nolan did not object to the admission of this evidence, and we were also content for it to be admitted. It was obviously in the interests of justice for the Tribunal to be provided with up-to-date country evidence.

6.              Mr Briddock confirmed that he was not applying for permission to cite the unreported Upper Tribunal decision of Judge O'Callaghan in SW (Malaysia) v SSHD (UI-2021-001366, 12 August 2022) (his skeleton argument having suggested that he might do so). On that basis, we have not taken into account Judge O'Callaghan's decision.

7.              Over the course of the hearing, the disputed issues distilled as follows:

Refugee Convention and Article 3 ECHR

1. Issue 1: credibility and fact-finding as to the appellant's reasons for concealing his sexual orientation on return. The respondent did not accept that fear of persecution was a material reason for concealment as claimed.
2. Issue 2: risk on return to home area. The respondent did not accept that the appellant would be at risk of persecution or serious harm on return to his home area, the state of Negeri Sembilan.
3. Issue 3: safety of internal relocation to KL. The respondent did not accept that the appellant would be at risk of persecution or serious harm if he were to relocate to KL.
4. Issue 4: reasonableness of internal relocation to KL. The respondent did not accept that it would be unreasonable for the appellant to relocate to KL.

Article 8 ECHR

5. Issue 5: Article 8(1) - whether Article 8 was engaged by the proposed removal of the appellant. The respondent did not accept that it was.
6. Issue 6: Article 8(2) - whether there would be very significant obstacles to the appellant's integration in Malaysia for the purposes of paragraph 276ADE(vi) of the Immigration Rules (for the same reasons as advanced by the appellant in respect of the protection element of his claim). The respondent did not accept that there would be any such obstacles on return.

8.               We heard oral evidence from the appellant, via a Cantonese interpreter. He adopted his witness statement. There was no supplementary examination-in-chief. He was cross-examined. There was no re-examination.

9.               We do not propose to summarise the contents of the documentary or oral evidence at this stage of our decision. We refer to it below insofar as it is necessary to do so to explain the findings that we have reached.

10.           We heard submissions from Ms Nolan. She relied on the respondent's 18 November 2022 decision letter and made further oral submissions which we summarise as follows. The appellant had failed to establish that fear of persecution would be the reason for the concealment of his sexual orientation on return. He did not know anyone who had been arrested and detained for being gay in Malaysia; he was not aware of the specific laws concerning same-sex sexual activity in Malaysia; his claimed fear of persecution was vague and lacking in detail; his evidence about whether or not his family were aware that he was gay was confused; he had not told his housemate in the UK that he was gay for several years; his delay in claiming asylum was damaging to his credibility pursuant to section 8 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. All of these factors indicated that the true reason for the concealment of his sexual orientation on return would be societal pressure, not fear of persecution. Ms Nolan confirmed that the this was the only element of the appellant's factual account that was in dispute.

11.           In respect of risk on return, Ms Nolan submitted that the appellant would not be at risk on return to his home area or could safely and reasonably internally relocate to KL. This submission was based on the July 2024 CPIN, in particular the respondent's assessment of risk at paragraphs 3.1.1 ( "In general, whilst LGBI persons face official discrimination, this treatment is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution") and 3.3.1 ( "In general, whilst LGBI persons face some societal discrimination this treatment is not sufficiently serious by its nature and/or repetition, or by an accumulation of various measures which is sufficiently severe to amount to persecution"). She took us through the underlying evidence that she said substantiated this assessment. She invited us to dismiss the appeal on all grounds.

12.           We heard submissions from Mr Briddock. He relied on his 7 February 2025 skeleton argument and made further oral submissions which we summarise as follows. In respect of the reasons that he would conceal his sexual orientation on return, all that was required was for the appellant to demonstrate that a fear of persecution was a material part of them. He had been consistent and very clear from the outset of his claim that it was. It was irrelevant that he did not know anyone who had been arrested and detained for being gay in Malaysia and was not aware of the specific laws concerning same-sex sexual activity in Malaysia - he said he was taught that same-sex sexual activity was illegal in school, and as a Malaysian national he would have been well-aware that it was illegal and culturally taboo. It was irrelevant that he had not told his housemate that he was gay for several years - it was a matter for him to choose whom to tell about his sexual orientation. His evidence as to whether or not his family were aware that he was gay was not at all confused. As for section 8, his explanation for the delay in claiming asylum was that he was not aware that he could do so on the basis of being gay. His explanation was plausible, in particular in the context of the stigmatisation of being gay in Malaysia and where this was the only element of his factual account that was in dispute, and should be accepted. It was completely unrealistic on the evidence to say that a fear of persecution was not a material part of the reasons that he would conceal his sexual orientation on return.

13.           In respect of risk on return, on the basis of the underlying evidence cited in the July 2024 CPIN, Mr Briddock submitted that the appellant would have a well-founded fear of persecution and be at real risk of serious harm throughout Malaysia, including in KL. Alternatively, on the basis of the same evidence, it would be unreasonable for the appellant to relocate to KL. He took us through the underlying evidence that he said substantiated these submissions.

14.           In respect of Article 8 ECHR, Mr Briddock submitted that the appellant would face very significant obstacles to his integration in Malaysia for the purposes of paragraph 276ADE(vi) of the Immigration Rules, for the same reasons that he would face persecution and serious harm there. He confirmed that he was not advancing any separate arguments under Article 8 assessed 'outside' the Immigration Rules.

15.           At the conclusion of the hearing, we reserved our decision.

FINDINGS AND REASONING

Refugee Convention and Article 3 ECHR

16.           We remind ourselves that the lower standard of proof applies in claims and appeals under the Refugee Convention and Article 3 ECHR (certainly for claims such as this one, made prior to the coming into force of the Nationality and Borders Act 2022).

17.           Under the Refugee Convention, a claimant must show "a reasonable degree of likelihood" that they would be persecuted for a Convention reason if they were to return to their own country: R v SSHD, ex p. Sivakumaran [1987] UKHL 1, [1988] AC 958, per Lord Keith at 994. Even a 10% chance that a claimant would face persecution for a Convention reason may be sufficient to satisfy this test: MAH (Egypt) v SSHD [2023] EWCA Civ 216, [2023] Imm AR 713, per Singh LJ at [52].

18.           Under Article 3 ECHR, a claimant must show that there is a real risk that they would be subjected to serious harm - that equates to the same lower standard of proof as applies under the Refugee Convention: Kacaj (Article 3, Standard of Proof, Non-State Actors) Albania* [2001] UKIAT 18, [2002] Imm AR 213, per Collins J at [39].

Issue 1: credibility and fact-finding

19.           We have carefully considered all of the documentation and everything that we heard at the hearing. Having done so, we are entirely satisfied that the appellant has established to the lower standard that fear of persecution is a material reason that he would conceal his sexual orientation if he were to return to Malaysia.

20.           That is for the following reasons:

1. The respondent accepts all aspects of the appellant's factual account except this one. This is very significant concession.
2. Before us, the appellant provided cogent and compelling oral evidence.   He stood-up well to close cross-examination, providing clear and straightforward answers to all of the various purportedly adverse matters that were put to him. In particular, we do not accept that his evidence as to whether or not his family were aware that he was gay was confused: he had not told them he was gay but thought, despite this, they might have come to suspect he was gay. Overall, he was an impressive witness.
3. On the basis of the evidence contained in the July 2024 CPIN, it is entirely plausible that the appellant would fear persecution for being gay if he were to return to Malaysia, and would conceal his sexual orientation for that reason. We consider the July 2024 CPIN in detail below. For now, it is sufficient to say that it makes it quite clear that the LGBTQ+ community is the subject of serious discrimination and harassment and by both the government and society at large. As a Malaysian national who lived there until he was aged around 21 years, the appellant would be well aware of this.
4. From the outset of his claim, the appellant has been clear and wholly consistent in saying that fear of persecution is a material part of the reason that he would conceal his sexual orientation if he were to return to Malaysia. Mr Briddock's skeleton argument refers in detail to all of the occasions on which he has said it, including in his screening interview, his preliminary information questionnaire, both of his substantive asylum interviews, and his witness statement.
5. We give little weight to the appellant not knowing anyone who had been arrested and detained for being gay in Malaysia and not being aware of the specific laws concerning same-sex sexual activity in Malaysia. We accept Mr Briddock's submissions on this point: as a Malaysian national who grew up there, the appellant would have been well-aware that same-sex sexual activity was illegal and culturally taboo.
6. We give little weight to the fact that the appellant did not tell his housemate that he was gay for several years. We adopt the reasoning of the respondent, as stated at p.38 of her 'Asylum policy instruction: sexual orientation in asylum claims' (v.6, August 2016 - this document was included among the papers before us):

"The HJ judgment makes it very clear that the point of analysis is how the individual would act on return. How the individual has acted until now in their country of origin or in the UK is immaterial. Case workers should not equate any historic absence on the part of the claimant in openly expressing their sexuality, for any reason, as evidence of voluntary discretion. The mere fact that someone may, in their past, have been discreet, even for non-protection reasons, does not mean that those reasons were either the sole reasons why they were discreet, nor do they indicate how the claimant will continue to behave on return."

7. We accept that section 8 is engaged by the appellant's delay in claiming asylum (and doing so only after he was encountered by the respondent).  We remind ourselves that such conduct is only potentially damaging to an appellant's credibility: JT (Cameroon) v SSHD [2008] EWCA Civ 878, [2009] WLR 1411, per Laws LJ at [24]. The appellant's explanation is that he was not aware that he could claim asylum on the basis of being gay. We accept Mr Briddock's submissions on this point: we consider the appellant's explanation to be plausible, given the stigmatisation of being gay in Malaysia and that this is the only element of the appellant's factual account that is in dispute. We accept the explanation and give the appellant's delay in claiming asylum little weight. 

21.           Having accepted the credibility of this element of the appellant's factual account, we make a specific factual finding that fear of persecution is a material reason that the appellant would conceal his sexual orientation if he were to return to Malaysia.

Issue 2: risk on return to home area

22.           We have carefully considered the July 2024 CPIN and taken account of the parties' submissions.

23.           We acknowledge, and have given significant weight to, the respondent's assessment of risk contained in the July 2024 CPIN (in particular, those at paragraphs 3.1.1 and 3.3.1, cited above).

24.           Nevertheless, having reminded ourselves of the low standard that applies here, we have concluded that the evidence contained in the July 2024 CPIN demonstrates that there would be a reasonable degree of likelihood that the appellant would be persecuted if he were to return to Malaysia and live there openly as a gay man.

25.           That is for the following reasons:

1. The constitution does not specifically protect against discrimination based on sexual orientation (paragraphs 3.1.5, 7.1.1). There is no legal recognition of same-sex relationships (paragraph 7.4.1).
2. The government is extremely hostile towards the LGBTQ+ community. Several government officials have publicly stated that the government does not accept that being LGBTQ+ is lawful and instead considers it to be against Malaysia's religious, moral and cultural norms (paragraphs 3.1.8, 8.1.1 et seq.). In this context, Ms Nolan noted that, in September 2023, Prime Minister Anwar stated that the government did not condone "excessive action or harassment" of the LGBTQ+ community (paragraphs 3.1.8, 8.1.11). In response, Mr Briddock pointed out that, on the same occasion, the Prime Minister had also stated that Malaysia would never recognise LGBTQ+ rights, which we agree is a significant caveat. We also note that the Prime Minister used the word "excessive", which suggests that he considers a lesser degree of harassment might be legitimate. Indeed, he is also reported, on a different occasion, to have rejected the idea that LGBTQ+ Malaysians would be recognised and protected under his government, saying "This is delusion. Of course it will not happen" (paragraph 8.1.13). We further note that, in August 2023, the government prohibited the possession of wristwatches produced as part of a Pride collection - the offence is punishable by a sentence of imprisonment of up to 3 years and a financial penalty (paragraphs 3.1.17, 7.4.6-7.4.7). Although it is not known whether there have been any arrests or prosecutions under this new law, we consider its introduction to be a strong indication of the government's extreme hostility towards the LGBTQ+ community.
3. Although the penal code does not specifically refer to same-sex sexual activity, it contains an offence of "carnal intercourse against the order of nature", which includes same-sex acts, and is punishable by imprisonment of up to 20 years and corporal punishment (paragraphs 3.1.6, 7.1.4-7.1.5). Alternatively, same-sex acts are included in the offence of "gross indecency", which is punishable by imprisonment of up to 2 years (paragraphs 3.1.6, 7.1.5). In addition, same-sex sexual activity is prohibited under state Sharia law, which applies only to Muslims, and is punishable by imprisonment of up to 3 years, financial penalties and corporal punishment (paragraphs 3.1.7, 7.2.1 et seq.). We note that the respondent accepts that Muslim members of the LGBTQ+ community would have a well-founded fear of persecution if they lived openly on return to Malaysia - however, the appellant is not Muslim.
4. There are no official statistics for the number of LGBTQ+ people that are prosecuted for same-sex sexual activity, though there are reports of such prosecutions occurring - albeit that they are more commonly brought against Muslims under state Sharia law (paragraphs 8.2.2-8.2.7). There are statistics relating to the number of "unnatural sex" cases - 249 in 2020, 222 in 2021, 199 in 2022 - but they must be treated with caution because the specific offence that this relates to is not clear, and nor is it clear whether it relates to same-sex sexual activity only (paragraphs 3.1.10, 3.1.11, 8.5.4-8.5.7).
5. The respondent assesses the risk of being prosecuted for unnatural sex to be low, in the context of a population of 345 million (paragraph 3.1.11). Ms Nolan and Mr Briddock agreed that this population figure is a tenfold overstatement - the population of Malaysia is in fact around 35 million. We disagree with this assessment. We consider that there is a significant risk that a person living openly as a gay man would be prosecuted in Malaysia, whether or not they are a Muslim (though the risk to Muslims is clearly higher). That is because the government is extremely hostile towards the LGBTQ+ community, there are a number of offences which potentially include same-sex sexual activity and carry sentences of imprisonment and corporal punishment, and it is known that hundreds of people are prosecuted for unnatural sex each year. Further, we consider that this figure is far lower than it would be if more members of the LGBTQ+ community lived openly as such: we consider it to be highly likely that many members of the community live discreetly for a range of reasons, including fear of ill-treatment and societal pressure, and thereby avoid the risk of prosecution.
6. Conversion therapy practices aimed at changing a person's sexual orientation are promoted by the government, particularly (but not exclusively) in relation to Muslims, and there are reports of forced attendance after arrest (paragraphs 3.1.14, 8.6.1 et seq.).
7. State law enforcement authorities have been responsible for harassment, discrimination and violence against LGBTQ+ people, including reports of physical and sexual assaults by the police (paragraphs 4.1.2, 8.2.8-8.2.10). We note that, on this basis, the respondent accepts that the state is not willing to offer effective protection against persecution (paragraph 4.1.1). We agree. In addition, we consider that these matters are also of the utmost relevance to the (anterior) question of whether there is a reasonable degree of likelihood that an LGBTQ+ person living openly as such would be persecuted by state actors in Malaysia. They are very strong indicators that there is. Again, we consider it to be highly likely that such incidents would be more common if more LGBTQ+ people were to live openly as such.
8. There are yet further examples of the state's active harassment of the LGBTQ+ community. While there are some LGBTQ+ clubs in KL, they are occasionally subject to state interference in the form of raids and arrests of attendees (paragraph 3.1.18). Similarly, while there are some protests and demonstrations in support of LGBTQ+ rights, they are subject to state interference in the form of harassment and arrest of organisers and attendees (paragraphs 3.1.16, 11.2.4-11.2.7).
9. In addition, LGBTQ+ people also face discrimination, stigma, threats and violence from members of society, including their families, in circumstances where it is accepted that there is no sufficiency of protection (paragraphs 3.3.4, 9.1.1 et seq.). Yet again, we consider it to be highly likely that such incidents would be more common if more LGBTQ+ people were to live openly as such. The respondent states that well-educated, wealthier LGBTQ+ people from urban areas are less likely to have to conceal their sexual orientation from their family and friends - be that as it may, it does not apply to this appellant, who is not well-educated, wealthy or from an urban area.

26.           As a result of factors including population density, a larger LGBTQ+ community, and more tolerant attitudes towards the LGBTQ+ community, we acknowledge that the risk that the appellant would face might well be somewhat lower in KL than it would be in his home area of Negeri Sembilan (paragraphs 5.1.3). Nevertheless, for all of the reasons set out above, we are satisfied that there would be a reasonable degree of likelihood of persecution throughout Malaysia, including KL.

Issue 3: safety of internal relocation to KL

27.           On the basis of our analysis above, we do not consider that it would be safe for the appellant to return to any part of Malaysia and live there openly as a gay man. This conclusion disposes of issue 3: it would not be safe for the appellant to relocate to KL.

Issue 4: reasonableness of internal relocation to KL

28.           In light of our finding that it would not be safe for the appellant to relocate to KL, it is not necessary for us to go on to consider whether it would be reasonable for him to do so.

Conclusion on Refugee Convention and Article 3 ECHR

29.           On the basis of the respondent's concessions and our findings above, the appellant meets each of the four stages of the test in HJ (Iran) v SSHD [2010] UKSC 31, [2011] AC 596, per Lord Rodger at [82]:

1. Is the appellant gay? The respondent accepts that he is.
2. Would the appellant have a well-founded fear of persecution if he were to return to Malaysia and live there openly as gay man? We have found that he would.
3. Would the appellant live openly as a gay man if he were to return to Malaysia? The respondent accepts that he would not; rather, he would conceal his sexual orientation.
4. Why would the appellant conceal his sexual orientation on return? We have found that a material reason would be his fear of persecution.

30.           We allow the appellant's appeal under the Refugee Convention. We allow his appeal under Article 3 ECHR on the same basis.

Article 8 ECHR

Issue 5: Article 8(1) ECHR

31.           The engagement of Article 8 ECHR is a low-threshold test: see AG (Eritrea) v SSHD [2007] EWCA Civ 801, [2008] 2 All ER 28, per Sedley LJ at [28]. The appellant arrived in the UK in 2015, and we are entirely satisfied that he has since developed a private life here that engages Article 8, by length of residence, with his friends, and as a member of the LGBTQ+ community.

Issue 6: Article 8(2) ECHR

32.           We have found that Article 8(1) ECHR is engaged here. Therefore, the fact that the appellant meets the Immigration Rules for leave to remain as a refugee is positively determinative of his Article 8 claim and appeal, even though the Rules that he meets do not concern Article 8: see TZ (Pakistan) v SSHD [2018] EWCA Civ 1109, [2018] Imm AR 1301, per Sir Ernest Ryder at [34].   This is the case notwithstanding any public interest factors that may count against him, including those in section 117B of the Nationality, Immigration and Asylum Act 2002. It reflects section 117B(1), which provides that the maintenance of effective immigration control is in the public interest - the appellant has met the UK's immigration control requirements.

Conclusion on Article 8 ECHR

33.           We allow the appellant's appeal under Article 8 ECHR.

Notice of Decision

The decision of the First-tier Tribunal having been set aside, the decision on the appeal is remade by allowing it under the Refugee Convention and Articles 3 and 8 ECHR.

 

 

B. Hoshi

 

Deputy Judge of the Upper Tribunal

Immigration and Asylum Chamber

 

3 March 2025