The starting point for the analysis is the debate that accrued from the 2010 United Kingdom Supreme Court judgment in HJ (Iran) and HT (Cameroon) and an article that refugee law scholars James Hathaway and Jason Pobjoy wrote in response to it. The UK Supreme Court had rejected the previously common requirement that claimants act ‘discreetly’ in their country of origin in order to avoid persecution. Hathaway and Pobjoy criticised the judgment for being too broad and failing to distinguish protected from unprotected conduct. The chapter argues that the controversy that was triggered following the publication of the article crystallises the broader dispute concerning the claimant’s future behaviour and the question of what is protected under refugee law. The question arises out of the observation that claimants have at least notionally some control over the disclosure of the persecuted characteristic. The chapter reviews case law and literature that has dealt with these questions and suggests that the debate is shaped by two principles in refugee law that are shared by the community, although they are in tension: the notion that to require the claimant to hide the persecuted characteristic undermines the raison d’être of refugee law, and the notion that the purpose of refugee law is not to provide for the full range of available rights and freedoms.

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.