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5 - Irreversibly Determined

Germany

from Part I - Tracing ‘Discretion’ Reasoning

Published online by Cambridge University Press:  19 July 2021

Janna Wessels
Affiliation:
Vrije Universiteit, Amsterdam
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Summary

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.

Type
Chapter
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The Concealment Controversy
Sexual Orientation, Discretion Reasoning and the Scope of Refugee Protection
, pp. 103 - 127
Publisher: Cambridge University Press
Print publication year: 2021

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  • Irreversibly Determined
  • Janna Wessels, Vrije Universiteit, Amsterdam
  • Book: The Concealment Controversy
  • Online publication: 19 July 2021
  • Chapter DOI: https://doi.org/10.1017/9781108938402.006
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  • Irreversibly Determined
  • Janna Wessels, Vrije Universiteit, Amsterdam
  • Book: The Concealment Controversy
  • Online publication: 19 July 2021
  • Chapter DOI: https://doi.org/10.1017/9781108938402.006
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Irreversibly Determined
  • Janna Wessels, Vrije Universiteit, Amsterdam
  • Book: The Concealment Controversy
  • Online publication: 19 July 2021
  • Chapter DOI: https://doi.org/10.1017/9781108938402.006
Available formats
×