Publicly manifested-fatefully determined-invariably "discreet": The assessment of sexuality-based asylum claims in Germany and France

Janna Wessels*

*Corresponding author for this work

Research output: Contribution to JournalReview articleAcademicpeer-review

Abstract

One of the most controversial issues concerning sexuality-based asylum claims in recent years has been "discretion" reasoning-the notion that a claimant can avoid persecution by behaving "discreetly." Though often challenged, such reasoning has remained resilient in the English-speaking common law jurisdictions, upon which research has mainly focused to date. This article broadens the debate by undertaking a detailed exploration of "discretion" reasoning in sexuality-based asylum claims in Germany and France, two of the major European civil law jurisdictions. In the first part, the article demonstrates that in very different forms "discretion" logics have traditionally also affected sexuality-based asylum claims in each of these jurisdictions. The second part of the article explores the effects that the Europeanization of asylum and the rejections of the "discretion" requirement by the UK Supreme Court in 2010 and the Court of Justice of the European Union in 2012 and 2013 have had on established French and German jurisprudence. The analysis reveals that rather than ending "discretion" reasoning in Germany and France, these developments have transformed it, such that it persists in a different shape. Much like in the common law jurisdictions, with all of its problematic implications, "discretion" reasoning remains deeply entrenched and resistant in German and French decision-making practice concerning sexuality-based asylum claims.

Original languageEnglish
Pages (from-to)343-374
Number of pages32
JournalCanadian Journal of Women and the Law
Volume29
Issue number2
DOIs
Publication statusPublished - 1 Jan 2017
Externally publishedYes

Fingerprint

Dive into the research topics of 'Publicly manifested-fatefully determined-invariably "discreet": The assessment of sexuality-based asylum claims in Germany and France'. Together they form a unique fingerprint.

Cite this