The 'Just Be Discreet' Myth: Why Discretion Reasoning Fails

Last updated: 5 October 2026

Photo: LGBTQ - Jennifer

For years, LGBTQ+ asylum seekers heard the same advice from judges and officials: "Just be discreet and you will be safe." This LGBTQ discretion myth denied protection to thousands of people. The reasoning was simple but cruel. If a gay person could hide their identity, they would not face persecution. Therefore, they did not need asylum. The highest courts in the UK, the EU, and other countries have now rejected this reasoning completely.[1] Yet the myth still appears in asylum decisions today. This article explains the history of discretion reasoning, why it fails, and how to challenge it.

The Old Approach: "Be Discreet, Stay Safe"

Before 2010, many asylum systems used what is now called the "discretion reasoning" or "reasonably tolerable" test. The logic worked like this: a gay man from Iran claims asylum. The judge accepts he is gay. The judge accepts that Iran punishes homosexuality with death. But the judge then says: "If you go back to Iran and hide your sexuality, nobody will know. So you will not face persecution."[2]

This approach treated concealment as a solution. It asked LGBTQ+ people to live a lie for the rest of their lives. They could not have relationships. They could not be honest with friends or family. They could not participate in LGBTQ+ community life. The courts said this was "reasonable" because it would keep them physically safe.

The LGBTQ discretion myth was applied across many countries. In the UK, the Court of Appeal used this reasoning in J v Secretary of State for the Home Department [2006].[3] In Australia, the courts applied a similar "modified behaviour" test. In many European countries, decision-makers routinely told LGBTQ+ asylum seekers that discretion was the answer. Thousands of claims were refused on this basis.

The Landmark Case: HJ (Iran) and HT (Cameroon) [2010]

Everything changed with the UK Supreme Court's decision in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department [2010] UKSC 31. This case involved two men. HJ was a gay man from Iran. HT was a gay man from Cameroon. Both countries punish homosexuality severely. Both men had been told they could be discreet and avoid harm.[4]

The Supreme Court rejected the discretion approach in the strongest possible terms. Lord Hope delivered the leading judgment. He said that being gay is a fundamental part of a person's identity. Asking someone to hide their sexuality is the same as asking them to deny who they are. This violates their basic human rights.

To compel a homosexual person to pretend that his sexuality does not exist or suppress the behaviour by which to manifest itself is to deny him his fundamental right to be who he is.
Lord Hope, HJ (Iran) v Secretary of State for the Home Department [2010] UKSC 31, para 11

The court set out a clear test for future cases. First, the judge must decide whether the person is LGBTQ+. Second, the judge must ask: if the person lived openly in their home country, would they face persecution? Third, if the answer is yes, the judge must consider why the person would conceal their sexuality. If the reason for concealment is fear of persecution, then the person qualifies as a refugee. The person cannot be told to hide.[5]

How the LGBTQ Discretion Myth Was Overturned

The HJ (Iran) decision established a principle that applies far beyond LGBTQ+ cases. The court said you cannot require anyone to conceal a protected characteristic to avoid persecution. This applies equally to political opinion, religion, race, and nationality. If a person would face persecution for being who they are, the solution is not to tell them to pretend to be someone else.

The United States Approach

The US took an important step earlier than the UK. In Matter of Toboso-Alfonso (1990), the Board of Immigration Appeals recognised that a gay man from Cuba qualified as a member of a particular social group.[6] Attorney General Janet Reno designated this as a precedent decision in 1994. This meant LGBTQ+ people could, in principle, obtain asylum in the US.

However, the application has been inconsistent. Some immigration judges have continued to apply discretion reasoning in practice. They may not say "be discreet" directly. Instead, they may question whether the person would actually face harm. They may suggest that the person was not "out" in their home country, so they would not be targeted. This is a form of the same myth in different language.[7]

US courts have not issued a ruling as clear as HJ (Iran). As a result, outcomes depend heavily on which judge hears the case. Advocates argue that the US needs a clear precedent that matches the UK and EU approach.

The European Union Approach

In 2013, the Court of Justice of the European Union (CJEU) addressed the discretion question directly. In joined cases C-199/12, C-200/12, and C-201/12 (X, Y and Z v Minister voor Immigratie en Asiel), the court ruled that EU member states cannot expect asylum seekers to conceal their homosexuality in their country of origin to avoid persecution.[8]

The CJEU also ruled that the existence of criminal laws against homosexuality in the applicant's home country is relevant. When these laws are actually enforced, they can amount to persecution. The court said that criminalisation itself shows that the state views LGBTQ+ people as targets. This was an important step for LGBTQ+ asylum claims across all EU member states.

Canada has followed a similar path. Canadian courts have consistently held that requiring concealment is not an acceptable alternative to protection. The Immigration and Refugee Board of Canada's guidelines on sexual orientation and gender identity make this clear.[9]

Why the LGBTQ Discretion Myth Persists

Despite these landmark rulings, the LGBTQ discretion myth has not disappeared. It continues in more subtle forms. Some decision-makers still apply it without using the word "discreet." They use coded language instead. Recognising these patterns is essential for lawyers and expert witnesses.

"Low profile." A judge may say that the applicant would "keep a low profile" on return. This implies they would not face persecution because they would not attract attention. But this is discretion reasoning in disguise.

"Would not come to attention." A decision may note that the person did not have relationships or attend LGBTQ+ events in their home country. The decision then concludes they "would not come to the attention of authorities." Again, this assumes concealment is the solution.

"Not openly gay." Some decision-makers treat the fact that a person was not openly gay in their home country as evidence that they would not face persecution. This reverses the correct logic. The question is: why were they not open? If the answer is fear, then they are a refugee.

"No past persecution." The absence of past persecution does not mean there is no future risk. A person who has successfully hidden their identity has not been persecuted because of the concealment. The concealment itself is the problem.

How Expert Witnesses Address Discretion Arguments

Expert witnesses play an important role in challenging the LGBTQ discretion myth. Their evidence helps courts understand why discretion reasoning is both legally wrong and factually inaccurate. An expert witness can provide several types of evidence.

Country conditions evidence. The expert can show that in many countries, being "discreet" does not actually protect you. In places like Iran, Chechnya, or Uganda, the state actively searches for LGBTQ+ people. Police use dating apps, informant networks, and forced confessions. Neighbours and family members report people. Being discreet is not a guarantee of safety.[10]

Psychological evidence. Experts can explain the mental health impact of forced concealment. A lifetime of hiding one's identity causes anxiety, depression, and post-traumatic stress. The psychological harm of concealment is itself a form of persecution. This is especially true when the person can never let their guard down.

Cultural context. Experts can explain why a person may not have disclosed their sexual orientation early in the asylum process. In many cultures, homosexuality is never discussed. The person may not have the language to describe their experience. They may feel deep shame. This context helps the court understand late disclosure without doubting the person's credibility.

For further guidance on the asylum process, including how to instruct expert witnesses, see our detailed guides. You can also find country-specific reports in our database.

Conclusion

The LGBTQ discretion myth caused real harm to real people. For decades, asylum seekers were told that hiding their identity was a reasonable alternative to protection. The highest courts in the UK, the EU, and other jurisdictions have firmly rejected this approach. Lord Hope's words in HJ (Iran) remain the clearest statement: you cannot force a person to pretend their sexuality does not exist.

Yet the myth persists in subtle forms. Coded language about "low profiles" and "not coming to attention" still appears in asylum decisions. Lawyers, judges, and expert witnesses must remain alert to these patterns. The principle is clear: if a person would face persecution for living openly as LGBTQ+, and they would conceal their identity only because of that fear, they are a refugee. No one should have to choose between safety and identity.