5 - Irreversibly Determined

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.