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’.

Chapter 4 analyses French sexuality-based asylum judgments. ‘Discretion’ reasoning emerges in the shape of a focus on behaviour: in French jurisprudence, claimants were traditionally protected only if they had sought to externally manifest their sexual orientation in their country of origin. Otherwise they were sent back to continued ‘discretion’. This ‘discretion’ reasoning ‘in reverse’ was barely affected by the three judgments on ‘discretion’. As the latter operated on a ‘discretion’ requirement, they appeared only marginally relevant to French jurisprudence, which undertook the opposite assessment of whether claimants had been open about their sexuality. The Qualification Directive in contrast has led to a reconceptualisation of the French social group definition. The public manifestation requirement was dropped, whereas under the new definition, claimants now need to ‘claim’ their sexual orientation and be perceived as a group by the surrounding society. Since claimants had been ‘outed’ in all reviewed judgments – and therefore presumably ‘claimed’ their sexual orientation, it is unclear how this definition plays out for claimants who have successfully concealed their sexual orientation in the past.