Chapter 6 examines how the reasons for persecution are applied and interpreted by appellate authorities when individuals flee contemporary armed conflicts. It claims that due to appellate authorities’ conventional warfare perspective and the requirement of singling out and heightened standard of proof, there is limited judicial engagement with the Refugee Convention reasons in light of widespread violence. Instead, the Refugee Convention reasons for persecution are applied solely in light of the individual circumstances of appellants where these are considered to amount to singling out. Accordingly, there is a general failure to adequately consider actual or imputed Refugee Convention reasons for persecution. Where appellate authorities find that appellants have been singled out, they interpret the Refugee Convention ground of (imputed) political opinion too narrowly and fail to acknowledge women’s experiences of gendered violence. The chapter argues that violence is in fact motivated by identity politics on the basis of real or imputed reasons such as sex, ethnicity, race, religion, political opinion or social group and that therefore violence is not felt indiscriminately by persons fleeing armed conflicts. The chapter highlights the significance of imputed political opinion as a Refugee Convention ground in light of the nature of political violence and discrimination.

Chapter 5 examines how an essential element of the Refugee Convention definition, namely the ‘well-founded fear of being persecuted’, is applied and interpreted by judicial authorities when appellants flee contemporary armed conflicts. It sets out that only appellants who had experienced past persecution or singling out had their claim examined under the Refugee Convention. The chapter also discusses the finding that although appellate authorities have some awareness of gender norms, these are considered fixed, such that any departure from them is disbelieved and results in a negative risk assessment. Appellate authorities in the EU thus apply a higher standard of proof than warranted in international refugee law. In effect, this has led to a modification of the standard of proof in international refugee law as it is now equated with the assessment of credibility, which itself can be highly gendered. The chapter claims that the practice acts as barrier to the international protection of persons fleeing contemporary armed conflicts. Further, the failure to examine the general conditions of violence in contemporary armed conflicts is contrary to the obligations of states under international law.

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’.