8 - Mind the Gap

Summary

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’.