No Freedom in a Closet: The Persistence of Discretion Reasoning in the Refugee Status Determination Process for Lesbian, Gay, and Bisexual Asylum Applications to the European Union

Abstract: Lesbian, gay, and bisexual people continue to face discrimination and persecution in their daily lives, often from both the state and their communities. Where states do not provide for the basic human rights and physical security of their lesbian, gay, and bisexual citizens, many such citizens would flee their countries of origin in search of refuge in more hospitable countries. If other countries refuse to provide refuge for them, these refugees would be resigned to a situation where they are unable to enjoy the basic rights that the international community has supposedly guaranteed to them. This thesis will deal with the scope of the obligations that the member states of the European Union owe to lesbian, gay, and bisexual asylum seekers under the 1951 Convention and Protocol relating to the Status of Refugees, and the Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011. Specifically, this thesis will examine the application of discretion reasoning in the refugee status determination process for lesbian, gay, and bisexual asylum seekers. Discretion reasoning refers to a particular train of reasoning assumes that lesbian, gay, and bisexual asylum seekers are able to avoid persecution in their homophobic countries of origin by concealing their sexual identities, and therefore do not possess the required well-founded fear of persecution which would entitle them to refugee status, and the protections it entails. This thesis seeks to show the inherent flaws of discretion reasoning and its incompatibility with the tenets of refugee law. It also seeks to analyse the developments to abolish discretion reasoning in the member states of the European Union, and to demonstrate that such developments may not be as progressive as they seem. Finally, this thesis will propose improvements that can possibly be made to the refugee status determination process for lesbian, gay, and bisexual asylum seekers to the European Union.