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6 - Singled Out

Spain

from Part I - Tracing ‘Discretion’ Reasoning

Published online by Cambridge University Press:  19 July 2021

Janna Wessels
Affiliation:
Vrije Universiteit, Amsterdam
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Summary

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.

Type
Chapter
Information
The Concealment Controversy
Sexual Orientation, Discretion Reasoning and the Scope of Refugee Protection
, pp. 128 - 162
Publisher: Cambridge University Press
Print publication year: 2021

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  • Singled Out
  • Janna Wessels, Vrije Universiteit, Amsterdam
  • Book: The Concealment Controversy
  • Online publication: 19 July 2021
  • Chapter DOI: https://doi.org/10.1017/9781108938402.007
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  • Singled Out
  • Janna Wessels, Vrije Universiteit, Amsterdam
  • Book: The Concealment Controversy
  • Online publication: 19 July 2021
  • Chapter DOI: https://doi.org/10.1017/9781108938402.007
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Singled Out
  • Janna Wessels, Vrije Universiteit, Amsterdam
  • Book: The Concealment Controversy
  • Online publication: 19 July 2021
  • Chapter DOI: https://doi.org/10.1017/9781108938402.007
Available formats
×