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1 - The Concealment Controversy

An Introduction

Published online by Cambridge University Press:  19 July 2021

Janna Wessels
Affiliation:
Vrije Universiteit, Amsterdam
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Summary

The starting point for the analysis is the debate that accrued from the 2010 United Kingdom Supreme Court judgment in HJ (Iran) and HT (Cameroon) and an article that refugee law scholars James Hathaway and Jason Pobjoy wrote in response to it. The UK Supreme Court had rejected the previously common requirement that claimants act ‘discreetly’ in their country of origin in order to avoid persecution. Hathaway and Pobjoy criticised the judgment for being too broad and failing to distinguish protected from unprotected conduct. The chapter argues that the controversy that was triggered following the publication of the article crystallises the broader dispute concerning the claimant’s future behaviour and the question of what is protected under refugee law. The question arises out of the observation that claimants have at least notionally some control over the disclosure of the persecuted characteristic. The chapter reviews case law and literature that has dealt with these questions and suggests that the debate is shaped by two principles in refugee law that are shared by the community, although they are in tension: the notion that to require the claimant to hide the persecuted characteristic undermines the raison d’être of refugee law, and the notion that the purpose of refugee law is not to provide for the full range of available rights and freedoms.

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Chapter
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The Concealment Controversy
Sexual Orientation, Discretion Reasoning and the Scope of Refugee Protection
, pp. 1 - 29
Publisher: Cambridge University Press
Print publication year: 2021

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