The concluding chapter argues that the scope of refugee protection forms a complex picture of instability. Due to the refugee definition’s double rationale – Convention grounds and persecution – and the consequent conundrum of whether to focus on persecutor or persecuted, the scope of protection is subject to a variety of tensions and ambiguities which overlap and intersect in significant and complex ways. For example, human rights standards can be used as a benchmark when it comes to deciding both, which identities and which actions, fall within or outside of the scope of protection. And although ‘discretion’ reasoning is created at the level of the Convention ground, it moves around and is often debated in other elements of the refugee definition. These complex connections make everything unstable – not only ‘discretion’ itself but also its rejection. ‘Discretion’ functions as a patch for all these instabilities that emerge from the refugee definition. The book shows both the breadth and the depth of the ‘discretion’ logics: it is an unresolvable issue at the core of the refugee concept that surfaces at different layers, in different locations and in different ways – if it is put down in one place and form it will resurface in another place and in another form.

Chapter 7 shows that the struggles concerning the claimant’s potential ‘discretion’ have remained the same since Grahl-Madsen’s groundbreaking 1966 book. On the one hand, it may be the persecutor who defines what and who is persecuted. In this case, it is relevant whether harm is differentially inflicted due to the fact that the persecutor imputes or assumes a political opinion, irrespective of the claimant’s ‘actual’ convictions. On the other hand, it may be the claimant who defines group membership. Here, it is relevant whether the claimant has a deeply held political opinion. The task for the decision-maker is then to establish the deep conviction. The approaches do not necessarily map onto each other. When what is defined as the protected group does not equal the persecuted group as defined by the persecutor, ‘discretion’ logics emerge: Ultimately, in all these approaches, the protected group is made up of those who have been or are deemed at risk of being discovered by the persecutor – that risk being deduced either from their identity or their conduct, but always linked to their past or presumed future visibility. Those deemed ‘unrecognisable’ fall outside the protected group and are returned to (continued) ‘discretion’.

Chapter 8 addresses the competing definitions of the Convention ground ‘particular social group’: the ‘protected characteristics’ approach and the ‘social perception' approach. Whereas both are capable of encompassing sexuality-based claims, they each hold the potential for ‘discretion’ reasoning in different ways. The ‘protected characteristics’ approach is designed to exclude ‘trivial’ claims. If claimants fear harm for what is considered a non-fundamental aspect, they can be returned to be ‘discreet’. The ‘social perception’ test in contrast, which would more appropriately be called the ‘persecutor’s perception’ approach, in principle precludes any a priori exclusion of certain particular social groups. In this approach, it is the persecutor who defines what is persecuted. Yet the chapter shows that even this broader approach is prone to ‘discretion’ logics: the limit that is reverted to is the ‘singling out’ requirement, providing protection only to those who are singled out for persecution whereas those deemed able to pass unnoticed can be returned. As such, in both approaches, the protected group is not the same as the persecuted group, such that those who are persecuted but not protected must remain ‘discreet’.