3 - Rejecting ‘Discretion’

Summary

Chapter 3 introduces the empirical Part I, which examines decision-making practice concerning sexuality-based claims in France, Germany and Spain in order to analyse the extent to which ‘discretion’ logics operate. The analysis of jurisprudence in these three countries is essentially longitudinal. It assesses jurisprudence in ‘time slices’ before and after the Europeanisation of asylum and the rejection of the ‘discretion’ requirement in three high-level judgments. Chapter 3 frames this analysis and lays out the legal and jurisprudential context with a view to ‘discretion’ reasoning. It takes a closer look at the EU Qualification Directive, as well as the UK Supreme Court’s 2010 judgment in HJ (Iran) and HT (Cameroon), and the Court of Justice of the European Union (CJEU) twin judgments Y and Z on religion from 2012 and X, Y and Z on sexual orientation in 2013, to explore the extent to which they reject ‘discretion’ reasoning. On this basis, and using the theoretical lens of the act/identity dichotomy, the guiding question for the subsequent three chapters is whether ‘discretion’ logics were apparent in jurisprudence prior to the Qualification Directive and the three judgments rejecting the duty to be ‘discreet’, and the ways in which they were affected by these developments.