The Concealment Controversy

Abstract

The Concealment Controversy An IntroductionIn 2010 the United Kingdom Supreme Court passed an important judgment for refugee law doctrine. The case of HJ and HT concerned two gay men, from Iran and Cameroon respectively, who claimed asylum based on their sexual orientation. The intention of the judgment was to settle a doctrinal dispute that had been lingering for many years: the question of 'discretion' reasoning. The Court had to decide whether claims to international protection could be denied on the basis that claimants could reasonably be required to behave 'discreetly' upon return to their country of origin in order to avoid persecution. The UK Supreme Court ruled that any such behaviour modification cannot be required, reasonably or otherwise, of a claimant. The unanimous decision also purported to provide clear guidance to judges and decision-makers on how the claimant's future behaviour should be assessed in refugee status determinations. 1 But rather than providing a final answer, the UK Supreme Court's judgment inspired a fierce debate among refugee law scholars on the role of a claimant's acts, identity and rights. 2 James Hathaway and Jason Pobjoy prominently and severely criticised the judgment in HJ (Iran) and HT (Cameroon) as well as the previous Australian High Court judgment in S395, 3 upon which the UK Supreme Court 1 HJ (Iran) and HT (Cameroon) v.

Deconstructing Doctrinal Struggles through Legal Discourse Analysis: The Example of ‹Discretion› Reasoning in Refugee Law

“…The recognition of conflicting principles also allows for productive counter-strategies. The full analysis is presented in a book entitled The Concealment Controversy -Sexual Orientation, Discretion Reasoning and the Scope of Refugee Protection (Wessels 2021). Building on this work, the present piece owes its existence to two observations: Firstly, the concealment controversy is but one example of a legal problem that cannot be put down.…”

“…All references to the concealment controversy and the analysis of ‹discretion› reasoning are based onWessels (2021). Please refer to the book for a much more elaborate and subtle version of the argument only crudely and selectively presented here.4 Such as HJ (Iran) and HT (Cameroon) v. Secretary of State for the Home Department, [2010] UKSC 31, United Kingdom: Supreme Court, 7 July 2010; Federal Republic of Germany v. Y and Z, Joined Cases C-71/11 and C-99/11, Court of Justice of the European Union, 5 September 2012; X, Y and Z v. Minister voor Immigratie, Integratie en Asiel, Joined Cases C-199/12, C-200/12 and C-201/12, Court of Justice of the European Union, 7 November 2013.…”