‘Discretion’, persecution and the act/identity dichotomy

Research output: Working paperAcademic

Abstract

Can it ever be accepted that ‘someone could lawfully be required to “live discreetly” in their country of origin in order to avoid persecution?’1Alice Edwards observedthat ‘the appetite and imagination of the judiciary for new tests which limit refugeerecognition rates seems interminable.’2The idea of concealment, that is, ‘discretion reasoning’ in its manifold expressions,3is arguably one of those tests. Though Courts have often held it to be incompatible with the objective and purpose of the 1951 Convention Relating to the Status of Refugees, studies such as the Fleeing Homophobia Report have demonstrated that the idea that asylum claimants, and in particular LGBT people, conceal their protected identity continuously re-appears in refugee status determinations in different guises.4According to Jenni Millbank, ‘[r]easoning premised on assumptions about the ease, naturalness, and legal correctness of concealing lesbian, gay, and bisexual identity is one of, if not the, most significant and resilient barriers to the fair adjudication of sexual orientation’,5and that ‘[d]iscretion reasoning is extraordinarily widespread, resistant to challenge and strongly associated with high rejection rates for lesbian, gay and bisexual refugee claims.’6The issue has arisen particularly in sexual orientation/gender identity cases, but it is also an issue in cases based on political opinion7and religion.8So what makes it so resilient?
Original languageEnglish
PublisherVU Migration Law Series
Pages1-29
Number of pages29
Publication statusPublished - 2016

Publication series

NameVU Migration Law Series
PublisherWorking Paper Series
No.12

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  • Cite this

    Wessels, J. (2016). ‘Discretion’, persecution and the act/identity dichotomy. (pp. 1-29). (VU Migration Law Series; No. 12). VU Migration Law Series.