The Concealment Controversy: Sexual Orientation, Discretion Reasoning and the Scope of Refugee Protection

The book "Concealment in Refugee Law" explores the concept of concealment in refugee law and challenges the notion that a claim for international protection can be rejected based on the claimant's behavior in their country of origin. It examines the long-standing debate in both common and civil law jurisdictions and scholarship on the question of whether and under which circumstances a claimant must conceal to avoid persecution.

Format: Paperback / softback
Length: 320 pages
Publication date: 24 August 2023
Publisher: Cambridge University Press

The notion that an international protection claim can be denied solely on the grounds of the claimant's discreet behavior in their country of origin has persisted in asylum claims, particularly those based on sexual orientation and other grounds of claim. This is significant because it challenges the fundamental rationale of refugee protection by requiring an asylum-seeker to forego the very reason for which they are persecuted. This book represents the first principled examination of concealment in refugee law. Janna Wessels skillfully weaves together the various strands of the long-standing debate in both common and civil law jurisdictions and scholarship concerning the question of whether and under which circumstances a claimant must conceal to avoid persecution. Through this comprehensive analysis, Wessels unveils a fundamental tension at the heart of the refugee concept. By using sexuality as a lens, this study pioneers new ground in understanding sexual orientation claims and the broader issues surrounding the refugee definition.

Introduction:
The notion that an international protection claim can be denied solely on the grounds of the claimant's discreet behavior in their country of origin has persisted in asylum claims, particularly those based on sexual orientation and other grounds of claim. This is significant because it challenges the fundamental rationale of refugee protection by requiring an asylum-seeker to forego the very reason for which they are persecuted. This book represents the first principled examination of concealment in refugee law. Janna Wessels skillfully weaves together the various strands of the long-standing debate in both common and civil law jurisdictions and scholarship concerning the question of whether and under which circumstances a claimant must conceal to avoid persecution. Through this comprehensive analysis, Wessels unveils a fundamental tension at the heart of the refugee concept. By using sexuality as a lens, this study pioneers new ground in understanding sexual orientation claims and the broader issues surrounding the refugee definition.

The Persistence of the Discretionary Approach:
Despite the growing recognition of the importance of protecting LGBT individuals from persecution, the idea that a claim for international protection can be rejected on the basis of the claimant's discreet behavior in their country of origin has remained resilient in asylum claims based on sexual orientation, as well as other grounds of claim. This is significant because it questions the very rationale of refugee protection. Refugee protection is intended to provide a safe haven for individuals who face imminent danger of persecution in their home countries. By requiring an asylum-seeker to forgo the reason for which they are persecuted, the discretionary approach undermines the core principle of protecting those who are most vulnerable.

The Tension at the Core of the Refugee Concept:
The discretionary approach to concealment in refugee law creates a fundamental tension at the core of the refugee concept. On the one hand, it seeks to balance the interests of the state and the individual by allowing for discretion in determining whether a claimant should be granted protection. On the other hand, it undermines the fundamental principle of protecting those who are most vulnerable. This tension is particularly evident in cases where the claimant's behavior is deemed discreet in their country of origin, but still constitutes persecution. For example, in countries where homosexuality is criminalized, an LGBT individual may be able to live discreetly in their community, but still face discrimination, violence, and persecution from state authorities.

The Role of Scholarship and Jurisprudence:
The debate surrounding concealment in refugee law has been shaped by scholarship and jurisprudence in both common and civil law jurisdictions. Scholars have explored the various legal frameworks and principles that govern concealment, including the principle of non-refoulement, the right to privacy, and the principle of proportionality. Jurisprudence has also provided guidance on the circumstances in which a claimant may be required to conceal to avoid persecution, such as when the claimant is at risk of being discovered by state authorities or when the concealment is necessary to protect the claimant's safety.

Conclusion:
In conclusion, the notion that an international protection claim can be denied solely on the grounds of the claimant's discreet behavior in their country of origin has persisted in asylum claims, particularly those based on sexual orientation and other grounds of claim. This approach challenges the fundamental rationale of refugee protection by requiring an asylum-seeker to forego the very reason for which they are persecuted. This book represents the first principled examination of concealment in refugee law. Janna Wessels skillfully weaves together the various strands of the long-standing debate in both common and civil law jurisdictions and scholarship concerning the question of whether and under which circumstances a claimant must conceal to avoid persecution. Through this comprehensive analysis, Wessels unveils a fundamental tension at the heart of the refugee concept. By using sexuality as a lens, this study pioneers new ground in understanding sexual orientation claims and the broader issues surrounding the refugee definition.

ISBN-13: 9781108940351