Journal article

Publication details

Publicly manifested – fatefully determined – invariably discreet: The assessment of sexuality-based asylum claims in Germany and France
in journal: Canadian Journal of Women & the Law

Appears in this special issue:
Commemorating the Work of Professor Nicole LaViolette

Volume number: 29
Issue number: 2
Release year: 2017
Page range: 343-374

Author(s) details

Janna Wessels

Postdoctoral Researcher and Lecturer - Research Group Migration & Human Rights, University of Giessen

Publication description

Link to the publication on the Publisher’s catalogue
asylum, sexuality, EU, refugee law, Jurisprudence, Germany, cjeu
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.