Part II - Exploring the Limits of Protection

Summary

Part I explored decision-making practice concerning sexuality-based asylum claims in France, Germany and Spain. The different countries’ jurisprudence revealed that ‘discretion’ reasoning was prevalent in all three jurisdictions, and remained resistant to challenges over time, albeit with significant differences in focus. France, for example, granted protection only to those who had manifested their sexual orientation, whereas Germany limited protection to those with a determined identity. Either act or identity can stand in for the group, while the respective counterpart can be assessed as part of another aspect of the Convention definition. The fact that it is sometimes the act that counts for the Convention ground, and other times the identity, makes the reasoning more difficult to reconstruct.