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The concluding chapter argues that the scope of refugee protection forms a complex picture of instability. Due to the refugee definition’s double rationale – Convention grounds and persecution – and the consequent conundrum of whether to focus on persecutor or persecuted, the scope of protection is subject to a variety of tensions and ambiguities which overlap and intersect in significant and complex ways. For example, human rights standards can be used as a benchmark when it comes to deciding both, which identities and which actions, fall within or outside of the scope of protection. And although ‘discretion’ reasoning is created at the level of the Convention ground, it moves around and is often debated in other elements of the refugee definition. These complex connections make everything unstable – not only ‘discretion’ itself but also its rejection. ‘Discretion’ functions as a patch for all these instabilities that emerge from the refugee definition. The book shows both the breadth and the depth of the ‘discretion’ logics: it is an unresolvable issue at the core of the refugee concept that surfaces at different layers, in different locations and in different ways – if it is put down in one place and form it will resurface in another place and in another form.
Chapter 6 is dedicated to decision-making practice regarding sexuality-based asylum claims in Spain. Here, the act/identity emerges from the holding that ‘mere membership’ is not sufficient for a claim to be accepted; claimants needed to have been ‘singled out’ for persecution. This involved the requirement that the claimant had already been ‘outed’ and identified by the persecutor. The focus is on the claimant’s past externalising act. If claimants had not been ‘outed’ to the persecutor and therefore suffered prosecution, they were not entitled to protection in Spain. Spanish jurisprudence developed largely independently from international developments and there was no notable impact of the UK Supreme Court or the CJEU judgments on this approach in Spain. The Qualification Directive, however, which stipulated that persecution can also emanate from non-state actors (which had previously been rejected in Spain), led to the invention of the doctrinal figure of ‘significant transcendence’ in Spanish jurisprudence: claimants who had suffered harm at the hands of non-state actors had to provide written proof that the harm was inflicted due to their sexual orientation (irrespective of their identity) – otherwise they would be returned to (re-)concealment.
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.
Chapter 7 shows that the struggles concerning the claimant’s potential ‘discretion’ have remained the same since Grahl-Madsen’s groundbreaking 1966 book. On the one hand, it may be the persecutor who defines what and who is persecuted. In this case, it is relevant whether harm is differentially inflicted due to the fact that the persecutor imputes or assumes a political opinion, irrespective of the claimant’s ‘actual’ convictions. On the other hand, it may be the claimant who defines group membership. Here, it is relevant whether the claimant has a deeply held political opinion. The task for the decision-maker is then to establish the deep conviction. The approaches do not necessarily map onto each other. When what is defined as the protected group does not equal the persecuted group as defined by the persecutor, ‘discretion’ logics emerge: Ultimately, in all these approaches, the protected group is made up of those who have been or are deemed at risk of being discovered by the persecutor – that risk being deduced either from their identity or their conduct, but always linked to their past or presumed future visibility. Those deemed ‘unrecognisable’ fall outside the protected group and are returned to (continued) ‘discretion’.
Part I explored decision-making practice concerning sexuality-based asylum claims in France, Germany and Spain. The different countries’ jurisprudence revealed that ‘discretion’ reasoning was prevalent in all three jurisdictions, and remained resistant to challenges over time, albeit with significant differences in focus. France, for example, granted protection only to those who had manifested their sexual orientation, whereas Germany limited protection to those with a determined identity. Either act or identity can stand in for the group, while the respective counterpart can be assessed as part of another aspect of the Convention definition. The fact that it is sometimes the act that counts for the Convention ground, and other times the identity, makes the reasoning more difficult to reconstruct.
Chapter 2 lays out the theoretical and methodological approach for the analysis. The study draws on discourse analysis, understanding the category of homosexuality to be a construction built on an ‘external dimension’ (a regime of acts) and an ‘internal dimension’ (identity). Queer theory provides insights into the interplay of this act/identity distinction, which functions as an unstable dichotomy where sometimes one is favoured and sometimes the other. Within this system, the gay person is caught in a delicate situation, faced with contradictory expectations as to their ‘discretion’ and disclosure, while at the same time never in full control of what others know about their sexuality. In terms of methodological approach, the analysis is based on discourse analysis on refugee law doctrine. Unlike a classical doctrinal analysis seeking the right legal answer, this study is interested in the ways in which legal doctrine is constructed. Three case studies add an empirical element from the Common European Asylum System: sexuality-based asylum claims from Germany, France and Spain are submitted to analysis.
Part I focuses on ‘discretion’ reasoning in sexuality-based asylum claims in three core European jurisdictions. So far, there is generally little research into sexuality-based claims in these countries, and it is important to note that ‘discretion’ reasoning is only one aspect of relevance in the context of this set of cases.
Chapter 5 addresses ‘discretion’ reasoning in sexuality-based asylum jurisprudence in Germany. In contrast to France, Germany has a tradition of focusing on the claimant’s identity – only if the claimant was irreversibly and fatefully determined by their sexual orientation were they entitled to protection. The rationale was that under such circumstances, the sexual orientation would inescapably become visible. In cases where a ‘mere inclination’ was found, claimants were deemed able to exercise restraint such that they could be returned to their countries of origin. Germany takes part in the transnational judicial dialogue more actively than France or Spain, and the judgments rejecting the ‘discretion’ requirement have had a notable impact. Whereas the notion of irreversibility has been given up, however, it has in substance been transformed, such that decision-makers now require the sexual orientation to be ‘identity-defining’. As a result, the focus on the claimant’s identity persists, and claimants whose sexuality is not found to be defining their identity are rejected.
Chapter 8 addresses the competing definitions of the Convention ground ‘particular social group’: the ‘protected characteristics’ approach and the ‘social perception' approach. Whereas both are capable of encompassing sexuality-based claims, they each hold the potential for ‘discretion’ reasoning in different ways. The ‘protected characteristics’ approach is designed to exclude ‘trivial’ claims. If claimants fear harm for what is considered a non-fundamental aspect, they can be returned to be ‘discreet’. The ‘social perception’ test in contrast, which would more appropriately be called the ‘persecutor’s perception’ approach, in principle precludes any a priori exclusion of certain particular social groups. In this approach, it is the persecutor who defines what is persecuted. Yet the chapter shows that even this broader approach is prone to ‘discretion’ logics: the limit that is reverted to is the ‘singling out’ requirement, providing protection only to those who are singled out for persecution whereas those deemed able to pass unnoticed can be returned. As such, in both approaches, the protected group is not the same as the persecuted group, such that those who are persecuted but not protected must remain ‘discreet’.
Chapter 9 argues that a new layer of complication was added with the so-called human rights–based approach to refugee law. The challenge is that refugee protection is lesser in scope than human rights protection. That ‘lesser’ protection is usually located in the persecution element: while reference to human rights has opened up refugee law to a wider range of harms, not every human rights violation reaches the threshold of persecution. The chapter shows that one consequence of the human rights–based approach is the risk of conceptually merging Convention ground and persecution. According to the human rights approach, a violation of the freedom of religion or the freedom of thought can amount to persecution. In other words, prohibitions on the expression of the Convention grounds in themselves can be considered persecutory. The chapter reveals that this has led to the invention of an alternative or additional kind of harm that stands next to the harm that is inflicted in case the claimant does express the Convention ground – or is discovered in another way. This approach builds on and reinforces ‘discretion’ reasoning, because it distinguishes on the basis of the claimant’s future behaviour and requires ‘discretion’ under certain circumstances.
Chapter 4 analyses French sexuality-based asylum judgments. ‘Discretion’ reasoning emerges in the shape of a focus on behaviour: in French jurisprudence, claimants were traditionally protected only if they had sought to externally manifest their sexual orientation in their country of origin. Otherwise they were sent back to continued ‘discretion’. This ‘discretion’ reasoning ‘in reverse’ was barely affected by the three judgments on ‘discretion’. As the latter operated on a ‘discretion’ requirement, they appeared only marginally relevant to French jurisprudence, which undertook the opposite assessment of whether claimants had been open about their sexuality. The Qualification Directive in contrast has led to a reconceptualisation of the French social group definition. The public manifestation requirement was dropped, whereas under the new definition, claimants now need to ‘claim’ their sexual orientation and be perceived as a group by the surrounding society. Since claimants had been ‘outed’ in all reviewed judgments – and therefore presumably ‘claimed’ their sexual orientation, it is unclear how this definition plays out for claimants who have successfully concealed their sexual orientation in the past.
Research on the common law jurisdictions has described ‘discretion’ reasoning as an ‘adaptive phenomenon’, that is ‘extraordinarily widespread, resistant to challenge and strongly associated with high rejection rates’. Likewise, this is reflected in those high-level European judgments that rejected a ‘discretion’ requirement. They maintained ‘discretion’ logics by allowing for a ‘factual’ finding that a claimant ‘will’ maintain secrecy. This study of asylum judgments concerning sexuality-based claims in Germany, France and Spain suggests that the same conclusions are true of these three civil law jurisdictions.
Chapter 3 introduces the empirical Part I, which examines decision-making practice concerning sexuality-based claims in France, Germany and Spain in order to analyse the extent to which ‘discretion’ logics operate. The analysis of jurisprudence in these three countries is essentially longitudinal. It assesses jurisprudence in ‘time slices’ before and after the Europeanisation of asylum and the rejection of the ‘discretion’ requirement in three high-level judgments. Chapter 3 frames this analysis and lays out the legal and jurisprudential context with a view to ‘discretion’ reasoning. It takes a closer look at the EU Qualification Directive, as well as the UK Supreme Court’s 2010 judgment in HJ (Iran) and HT (Cameroon), and the Court of Justice of the European Union (CJEU) twin judgments Y and Z on religion from 2012 and X, Y and Z on sexual orientation in 2013, to explore the extent to which they reject ‘discretion’ reasoning. On this basis, and using the theoretical lens of the act/identity dichotomy, the guiding question for the subsequent three chapters is whether ‘discretion’ logics were apparent in jurisprudence prior to the Qualification Directive and the three judgments rejecting the duty to be ‘discreet’, and the ways in which they were affected by these developments.