Wessels, ‘“Discretion”, persecution and the act/identity dichotomy’, 2016

Wessels, J. (2016) ‘“Discretion”, persecution and the act/identity dichotomy’, Vrije University Migration Law Series, 12.

Introduction

Can it ever be accepted that ‘someone could lawfully be required to “live discreetly” in their country of origin in order to avoid persecution?’ Alice Edwards observed that ‘the appetite and imagination of the judiciary for new tests which limit refugee recognition rates seems interminable.’ The idea of concealment, that is, ‘discretion reasoning’ in its manifold expressions, is 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 reappears in refugee status determinations in different guises. According 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’, and that ‘[d]iscretion reasoning is extraordinarily widespread, resistant to challenge and strongly associated with high rejection rates for lesbian, gay and bisexual refugee claims.’ The issue has arisen particularly in sexual orientation/gender identity cases, but it is also an issue in cases based on political opinion and religion. So what makes it so resilient?

This paper argues that one of the reasons for this resilience is that discretion is based on an underlying is/does dichotomy that functions as a double bind. ‘Discretion’ reasoning refers to the assumption or expectation that a person change or hide the characteristic they are persecuted for and thus not come to the attention of potential persecutors. In other words, they would act discreetly so as to conceal their identity. In this sense, an act/identity (or ‘is/does’) dichotomy is at the core of any ‘discretion’ reasoning. Conversely, a distinction between activities and identity will easily (if not invariably) lead to ‘discretion reasoning’: Hiding a characteristic (concealment), always involves the idea that a person refrains from conduct related to, or expressing the, identity. At the same time, certain acts or behaviour may be expected or required as proof of an identity (‘indiscretion requirement’, or ‘discretion requirement in reverse’ as applied in France): as long as a person hid their identity, they were not perceived as ‘different’ by potential persecutors and therefore not at risk. By making that distinction, decision-makers are able to refuse to offer protection and thus indirectly prohibit any acts or behaviour they do not deem ‘reasonably required to reveal or express’10 the identity on the one hand, and require certain acts or behavior they deem ‘central’ to the identity on the other.

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