Better late than never? SOGI asylum claims and ‘late disclosure’ through a Foucauldian lens

Members of sexual orientation and gender identity (SOGI) minorities escaping persecution may apply for asylum or bring up their SOGI in asylum procedures later than expected by authorities for a variety of reasons, including, fear, shame, and ignorance. Using a Foucauldian lens—in particular the notions of power and confession—in this Article I assess how such instances of so-called late disclosure are regulated and treated by statutes, policy guidance, and case law, with a focus on the European context. I also consider in detail claimants’ experiences of late disclosures, and the views of both claimants and several other actors in the asylum system about this matter. The analysis concentrates on an extensive body of secondary data (including international, European, and domestic case law, policy documents, NGO reports, case files, etc.) as well as of primary data collected in Germany, Italy, and the UK, and at EU and Council of Europe levels. The collection of primary data was carried out through semi-structured interviews and online surveys with a range of stakeholders, focus groups with SOGI asylum claimants and refugees, observations of asylum appeals, and Freedom of Information requests. The Article thus offers an empirically- and theoretically-informed critique of late disclosures in SOGI asylum claims in Europe and puts forward a few recommendations to ameliorate the fear and injustice experienced by SOGI refugees while navigating an asylum system that is stacked against them in so many respects.