Chapter 6 is dedicated to decision-making practice regarding sexuality-based asylum claims in Spain. Here, the act/identity emerges from the holding that ‘mere membership’ is not sufficient for a claim to be accepted; claimants needed to have been ‘singled out’ for persecution. This involved the requirement that the claimant had already been ‘outed’ and identified by the persecutor. The focus is on the claimant’s past externalising act. If claimants had not been ‘outed’ to the persecutor and therefore suffered prosecution, they were not entitled to protection in Spain. Spanish jurisprudence developed largely independently from international developments and there was no notable impact of the UK Supreme Court or the CJEU judgments on this approach in Spain. The Qualification Directive, however, which stipulated that persecution can also emanate from non-state actors (which had previously been rejected in Spain), led to the invention of the doctrinal figure of ‘significant transcendence’ in Spanish jurisprudence: claimants who had suffered harm at the hands of non-state actors had to provide written proof that the harm was inflicted due to their sexual orientation (irrespective of their identity) – otherwise they would be returned to (re-)concealment.

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.

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.