IntroductionFootnote 1
Court transcripts have been foundational to African social, economic, and legal history for decades, transforming our understanding of many dimensions of the colonial African experience, such as gender relations, marriage and divorce, and labor coercion, and contributing to the theorization of colonial state power and its contestation.Footnote 2 Petitions, applications, and appeals have more recently garnered attention as a fruitful subset of legal documentation for recovering evidence of shifting imperial legal subjectivities, as a vehicle for navigating the contested terrain of transnational rights claims, and to document cleavages in the professional and bureaucratic cadres in postcolonial Africa.Footnote 3
This article investigates the future of these two, related empirical and theoretical threads – legal transcripts as a source of historical evidence, and as a theorization of agency, voice, and subjectivity – in the context of the increasing digitization of court records. We examine a genre of legal transcripts produced when Africans claim asylum in the Global North. Focusing on the United Kingdom and the United States, we consider two interrelated problems: the extent to which the archive of asylum constitutes an African archive; and the extent to which African historical archives of the future are shaped by forces outside the continent.
The shift toward digitization in official record-keeping by agencies and governments – for a variety of reasons, including but not limited to aiding access, economy, transparency, and accountability – has provoked concern among historical scholars.Footnote 4 Librarians and archivists, embracing digitization programs, have transformed the historical research process for better and worse.Footnote 5 As “technologies of suspicion” have crept into proceedings, Marco Jacquemet draws our attention to the “contradictory consequences” of the “epochal transformation” wrought by the use in the courtroom of digital devices, search engines, and digital translators in asylum adjudication.Footnote 6 But what has been called the “digital turn,” at least as it impacts African historical writing, is also part of a passive process, whereby issues as diverse as privacy, economy, and efficiency combine to exacerbate inaccessibility.Footnote 7 Producers of asylum agency, tribunal, court records – such as decision makers, lawyerly teams, humanitarian advocates, professional research divisions, and expert witnesses – convey records by email, proprietary text messaging services, or licensed internal office software. As Michael Buckland observes, “[e]ach different technology has different capabilities, different constraints.”Footnote 8 Briefs and memoranda of law are often submitted digitally, and decisions may be issued orally and recorded but never transcribed. An inestimable volume of the “archival trail” of African asylum seeking is dispersed, residing permanently outside any reachable, indexable, or formal record, limiting accessibility, and much of it is likely irrecoverable.
Theorizing the constitution and constrictions of dispersed digital archives, originating with asylum claims or otherwise, has direct relevance for African lives and for the African historical writing of the future. In a general sense, it offers an additional correction to the often-expressed conceit about the so-called “absent archive” of postcoloniality that so vexes a particular community of historians: the archive of postcoloniality is for us to locate, find, discern, and access.Footnote 9 Even the most violent and disruptive postcolonial moments bequeath rich and complex archival records, as Alison des Forges, Alicia Decker, and others have capably demonstrated.Footnote 10 Specifically, with regard to African mobilities, reconstructing the dispersed digital archive of contemporary African asylum-claiming opens up new avenues to African intimacies and affective economies, contributing to the reconstruction of complex historical truths.Footnote 11 Indeed, the dispersal of miscellaneous documentation across time and space compels scholars to innovate. Digital dispersal requires the development of a critical and proactive methodology focused on uniting materials with a view to “usability.”Footnote 12 Asylum and refugee documents are bedeviled by problems of authorship, agency, voice, and perhaps most importantly, access.
We begin with a discussion of key historiographical developments in the use of legal transcripts, with a view to highlighting the form and location of documents and their capacity to contribute to empirical and theoretical knowledge about agency, subjectivity, and voice. We then turn to asylum court records and describe their form, their layered content, and touch on some of the historical issues that they bring into focus and provide two examples of recent case files to illustrate the issues related to digitization. We situate asylum seeking – defined here as the physical and politico-administrative migratory act generating personal and country-specific documentation – within the wider genre of transnational petitioning. The final section considers the problems for the historians and archivists of the future arising from the digital dispersal of asylum court documentation. We offer a theoretical exposition of digital dispersal as it pertains to the transnational context of asylum court activities, one that may possibly be extended beyond to other court contexts, and we suggest some possible mechanisms to mitigate the effects of dispersal, or at the very least to incorporate an awareness of digital dispersal.
Legal Transcripts and African Historical Writing
Court records emerged as a vital resource for documenting the African historical past in the late 1970s and early 1980s, as historians and historical anthropologists struggled to discern African agency during the epoch of imperial invasion and colonial occupation.Footnote 13 Court records operate as a window into colonial/colonized relations and the micro-level iterations of power.Footnote 14 The legal history of African lives under colonial oppression was a joint project of archivists, historians, anthropologists, sociologists, and legal scholars. As Emily Burrill has observed, law, society, and legal regimes have long constituted a primary current in African studies generally, but it was the now foundational Law in Colonial Africa that established a methodology for using court cases and testimony in social history.Footnote 15 Native courts in British colonies, a cornerstone of indirect rule, were an early site of dynamic research. But French colonial rule also bequeathed important legal records, and qadi courts have more recently begun to reveal their secrets.Footnote 16 We identify several themes and concepts in this literature that resonate with immigration courts and asylum transcripts: the importance of a new forum to attract the airing of grievances, the legibility of previously concealed issues, and the transnationality of the legal subjectivities of court-centered disputation and petitioning.
Colonial court records are today preeminent historical resources for the lives of subaltern subjects, such as widows, orphans, divorcées, witches, and slaves, because the courts were a “new alternative” suddenly available to otherwise voiceless individuals.Footnote 17 Court records open historians’ eyes to the complex personal lives, the intimate struggles of quotidian existence, that were otherwise concealed in the precolonial, pre-court period. Although various precolonial legal fora operated across the continent, orality, tradition, patriarchy, custom, and privacy obfuscated the types of social challenges that erupted as new colonial courts sprung up, offering new venues for the airing of grievances.Footnote 18 Rachel Jean-Baptiste, Emily Osborn, and Emily Burrill have each used court records to reveal the agency of men and women navigating the “messy arrangements” of marriage embedded within equally, if not more complex, family relationships, social obligations, and political machinations.Footnote 19
While some may contend that privileging the world of courts overlooks the realms of experience where most of life is lived, asylum seeking and the transcripts that accompany it often divulge an entire life narrative, or at the very least a legible summation of life beyond the court.Footnote 20 Richard Roberts examined family court records to recover the “legibility” of wives negotiating separation, husbands suing to compel the return of spouses and children during harvest season, and litigation of bridewealth repartition or repayment.Footnote 21 Legibility, to develop James Scott’s description of the coercive and hierarchical structuring of state power, is a crucial development in African legal life.Footnote 22 By documenting what may have once seemed like petty familial disputes, future generations of African historians see multiple and multivalent infiltrations of colonial power, and in particular, how the establishment of courts instantiated and preserved the legal lives of even its most marginal subjects.Footnote 23
A related but distinct set of documentation, petitions are an equally perspicacious tool for recovering the concealed legal lives of Africans, colonial and post-colonial.Footnote 24 Benjamin Lawrance explained that letter-writing for hire was a “justifiable expense” because as a “central component” of “access to the colonial court system” they ensured “grievances” were “brought to the attention of appropriate legal authorities.”Footnote 25 Chima Korieh contends that petitions were “widely used by every class of the African population” during the colonial period. Footnote 26 Meredith Terretta explored the transnational “legalism” of petitions to circumvent colonial/anticolonial binaries, particularly as first the League of Nations Permanent Mandates Commission, then the United Nations Trusteeship Council, reshaped the colonizer-colonized relationship.Footnote 27 During decolonization and into independence, anticolonial militants collaborated with leftwing lawyers in France, drafting petitions that invoked human rights arguments.Footnote 28
The difficulties and limitations encountered with legal records, however, are numerous, and include location, access, voice, agency, incompleteness, and questions about secrecy/privacy. As Roberts discovered while researching family court records in Mali in the 1990s, personal matters are routinely protected for the lifetime of the individual and sometimes that of any children, making research onerous.Footnote 29 For Lawrance and Korieh, the petitions and letters by “bush-lawyers” are fragmentary, and only offer glimpses of disputes.Footnote 30 And in the “judicialization” sites described by Terretta, colonial agitators harnessing legal processes to contest colonialism inhabited a dizzying plethora of legal and quasi-legal statuses and jurisdictions.Footnote 31
A recurring concern encountered by those writing African history with legal transcripts centers on location and access. Documentation from court systems and petition pathways are scattered across time and space, archives of former colonies and former colonizers, and makes clearer that pathways are scattered across administrative, judicial, and executive repositories. Neither the massive League of Nations corpus in Geneva, nor smaller collections of court records in continental Africa, have benefitted from the dramatic improvements in accessibility made possible by programs like the searchable database Old Bailey Online.Footnote 32 Largescale African mobility is perhaps too recent to be eligible for indexation in a manner recently launched by the French Office for the Protection of Refugees.Footnote 33 And as immigration documentation is often haphazard, reflecting the episodic and shifting nature of migratory trends, their documentary form gives rise to ad hoc storage and discriminatory acts, such as the UK Home Office’s wholesale destruction of “Windrush Generation” landing cards in 2009–2010.Footnote 34 In view of these ongoing limitations, we must grapple with the realities of researching the history of African asylum seeking by describing the composition of the archival form, its locations, and the challenges of increasing digitization.
Asylum Documentation as Archive
Asylum seeking resonates with Michel Foucault’s assertion that an archive “differentiates discourses in their multiple existence.”Footnote 35 Asylum documentation is voluminous and overlapping, co-constituted in paper and digital form, of which only a small and constantly changing portion is ever viewable by all parties at one moment in time. To what extent it constitutes an “archive” is debatable, insofar as the documentation of individual cases engages many of the contingencies of the digital environment, such as multiple authorship, electronic transfer, regular updates superseding earlier versions “selected for destruction,” all tied to discrete jurisdictions.Footnote 36 Moreover, after a final decision, materials may be stored centrally, dispersed in multiple locations, partially duplicated, or even destroyed after statutory time limits.
Our conceptualization of asylum documentation as an archive emerges from our knowledge of asylum law and legal practice, both its international framework and its domestic iterations. Certain elements of documentation – such as the claimant’s narrative – can be found in asylum proceedings in most, if not all parts of the world, in paper and digital copies. Other components – such as the application (the I–589 in the United States), or expert reports about country conditions – may exist physically and digitally, but only be viewable and accessible to interested parties at different moments in time. At least since the late 1990s, lawyers and experts have shared dossiers electronically. Two examples from Togolese refugees since granted protection, one each in the US and the UK, illustrate the composition of what we call the “asylum court archive.”
Kwasi (not his real name), born in 1970 in Lomé, arrived in the US from Togo in 2001 with a valid F1 visa. The sole digitized documentation of which we are aware and to which we have access consists of a single pdf file shared by his attorney and saved by Benjamin Lawrance, acting as expert witness. In 2002, he claimed asylum by submitting the I–589, a standard federal form consisting of seven parts that details basic identity information and family, education, and residence details. Part C is the first opportunity for the applicant to state “information about your claim to asylum” and is often the first written account of the basis for the protection claim. The I–589 requires the individual identify which protected group(s) apply/ies and Kwasi picked “membership in a particular social group” and “political opinion.” He described further details in writing. Part E contains Kwasi’s signature and photograph. The next part of his digital document consisted of a three-page sworn statement, witnessed by a Notary Public, which is the second version of his persecution allegation and protection claim. Accompanying this was a photocopy of his Togolese passport, his US entry stamp, and his I–94 admission card. The next document is a signed 1991 “attestation” in support of his narrative from a Togolese political organization, followed by a certified English translation. He provided a photocopy of both sides of his political party membership card and a certified translation. The next documents comprise five country reports by Amnesty International, and an English translation of the 2000 Report of the International Commission of Inquiry of Togo by the United Nations and the Organization of African Unity, listing deceased and disappeared, including individuals with the same last name as Kwasi. The final part consists of an expedited referral and removal order directed to the Chicago Immigration court, issued 2002, from the Immigration and Naturalization Service Supervisory Asylum Officer. Kwasi’s original documentary record is protected and privileged, and archived by his law firm, along with records maintained by the INS (now BCIS), the Chicago immigration court, and the Bureau of Immigration Appeals.
Ama (not her real name), was born in Kpalimé, Togo, in 1987, and entered the UK as a minor in 2005, where she was immediately granted temporary protection. Upon reaching maturity, her lawyers began a new asylum claim based on political persecution. Ama’s documents were shared in a single email in 2007, containing six separate pdf files. The first was the 2005 UK Home Office grant of discretionary leave accompanied by the asylum rejection (the Reasons for Refusal letter, or RFRL) and an initial statement taken from Ama upon her arrival, with handwritten notes and corrections. A document from 2007 contained the rejection of the application to extend discretionary leave, accompanied by a new RFRL, the Notice of appeal to the Asylum and Immigration Tribunal, a “Guide to Completing the AIT–1 Appeal Form,” and a Notice of Restriction to a Person who has made an in-country in time claim for asylum (IS.248). The additional documents comprised a scan of a party membership card, a second was a two-page signed sworn statement in English from 2006, a typed, unsigned “Responses to Reasons for Refusal Letter,” copies of a Togolese passport and UK residence permit, and HPDL form, a document seeking permission to remain wherein Ama notes she had never been interviewed in her own language. Ama’s entire documentation includes voluminous files maintained by her solicitors (and now in storage), UK Home Office representations, and First-tier and Upper Tribunal records.
These two documentary overviews illustrate the difficulty in mapping, describing, and locating asylum documentation, and also demonstrate its archival form. Here, the term “asylum court” is a placeholder for a variety of legal fora that operate in a manner similar to courts, but detached from the judiciary (and outside the rule of procedure and evidence), as it is generally understood by legal scholars and historians. Asylum courts (or refugee tribunals) are housed in, or form part of different branches of government: they may be part of executive ministries or part of judiciaries and in some countries they operate quasi-autonomously. Asylum claims constitute a genre of formulaic documents often referred to as petitions for assistance, and in that respect, an overview of asylum claiming is instructive.
- Asylum Claiming in the United States
In 1980, Congress passed the Refugee Act of 1980, to harmonize US domestic law with the treaty obligations to the 1967 Protocol to the 1951 Convention Relating to the Status of Refugees.Footnote 37 An asylum applicant generally pursues relief in one of two ways: 1) an affirmative application, in which the applicant files an asylum application, Form 1–589, with the United States Citizenship and Immigration Services (USCIS); or 2) a defensive application, in which the applicant files the form I–589 before an immigration judge and argues that asylum is a defense to removal.Footnote 38 An applicant who files an affirmative application may have the application granted by USCIS without any further determinations, or USCIS may “refer” the application to an immigration judge to determine eligibility.
In 1990, the Immigration and Naturalization Service implemented the 1980 Refugee Act and established the Asylum Corps, a professional officer cadre specifically trained in refugee and human rights law, responsible for interviewing in depth individuals who apply for asylum in the United States.Footnote 39 In addition to the USCIS Asylum Corps, immigration courts also have jurisdiction to grant certain forms of immigration relief, including asylum. The immigration courts are housed within the Executive Office for Immigration Review (EOIR) in the Department of Justice. Immigration judges are appointed by the Attorney General after an application and vetting process.Footnote 40 In 2018, there were approximately 350 immigration judges in 60 immigration courts around the country.
Once a non-citizen has been charged by DHS as being in the United States without permission or valid immigration status, the individual has a removal hearing before an immigration judge where the individual can apply for relief to remain – asylum is a defense to removal. In an asylum case, the immigration judge presides over the hearing and decides whether to grant asylum protection and stop the individual from being removed. In the removal hearing, the government attorney (ICE attorney) represents the government’s interest. The non-citizen, referred to as the Respondent, has the right to obtain counsel for the hearing, but has no constitutional or statutory right to be represented at government expense.Footnote 41
In the US, the term immigration court in some ways is a misnomer because the courts are creatures of the administrative state and not Article III courts established by the US Constitution. Immigration courts exist only in regulatory form and as a matter of practice. Housed within a federal administrative agency, the Department of Justice, they are not subject to the same evidentiary or procedural rules of Article III courts. What evidence an immigration judge admits is generally a matter of discretion. Individual immigration judges operate idiosyncratic rules for courtroom practice, although the EOIR published an Immigration Court Practice Manual in 2008 in an attempt to harmonize immigration court practice.Footnote 42
Once a judge renders a decision, either party has the right to appeal to the Board of Immigration Appeals (BIA) for errors in law and fact by filing a notice of intent to appeal the decision within thirty days. Immigration court proceedings are recorded through audio recording equipment. Until fairly recently, these hearings were recorded by a cassette recorder. The judge controls the recording and there is no court reporter. The record’s integrity depends on the technology and an immigration judge’s attention to record preservation. In many instances a judge may turn the recorder off to speak to counsel off the record; forgetting to turn the recorder back on after may result in a loss of portions of the hearing.
- Asylum Claiming in the United Kingdom
The UK began formalising protection systems in the 1870s through the adoption of laws such as the Extradition Act 1870, which contained provisions giving suspects a right enforceable in domestic law not to be extradited; certain political offences were exempted from extradition and political and religious refugees protected from refusal of entry.Footnote 43 In terms of extradition, this meant that UK courts, rather than the Secretary of State, determined whether an offence was political. The 1905 Aliens Act included a proviso intended to ensure political and religious refugees were protected; however, following the Aliens Restriction Acts of 1914 and 1919, refugee status became matter solely for the Secretary of State.
The Immigration Appeals Act 1969 created the statutory system of appeals and required adjudicators appointed by the Secretary of State and an Immigration Appeal Tribunal appointed by the Lord Chancellor.Footnote 44 This provided Commonwealth citizens (but not aliens) appeals against exclusion and removal, designed to ease fears of racial discrimination. The Immigration Act 1971 extended the 1969 scheme to aliens. An in-country right of appeal did exist for those who were refused leave to enter or had a variation or deportation appeal if they claimed asylum.Footnote 45 In practice, this meant that many challenges to asylum decisions were made by way of judicial review. The UK House of Lords affirmed that whether a person was a “refugee” was a matter for the Secretary of State and not the courts.Footnote 46 A judicial review is a review, on limited grounds, of a decision. It does not (usually) enable the court to hear evidence and make findings of fact, or substitute its own decision for that of the relevant Secretary of State.
In 1993, following litigation at the European Court of Human Rights, a suspensive right of appeal was introduced through the Asylum and Immigration Appeals Act 1993. Significant success rates in appeals against removals to “safe” countries in the European Union on the grounds of onward refoulement then led to the abolition of an in-country right of appeal. The Immigration and Asylum Act 1999 increased in-country appeal rights by abolishing the distinction between illegal entrants and others, and introduced human rights appeals. It also extended the scope of non-suspensive appeals. The Nationality, Immigration and Asylum Act 2002 simplified the disparate rights of appeal with a “one-stop” system aimed at one immigration decision dealing with all grounds and one appeal.Footnote 47
The Asylum and Immigration (Treatment of Claimant) Act 2004 created the Asylum and Immigration Tribunal (AIT), replacing the 1969 system. The Tribunals, Courts and Enforcement Act 2007 abolished the AIT in 2010, transferring functions to the First-tier (Immigration and Asylum Chamber, IAC).Footnote 48 This 2010 Act governs the current appeals system whereby there is a right of appeal pertaining to “protection” claims (i.e. a decision to refuse asylum, revoke previously granted protection, or refuse a human rights claim) with an onward right of appeal to the Upper Tribunal.Footnote 49 Immigration decisions unrelated to “protection claims” no longer have a right of appeal and may only be challenged through “Administrative Review.”Footnote 50
An asylum applicant lodges an application in person either at a border or at a place designated by the Minister of State for Borders and Immigration.Footnote 51 Applicants normally complete a “screening interview” and a “substantive interview” and have an opportunity to submit a witness statement, written representations, and any other evidence, prior to a Secretary of State for the Home Department (SSHD) decision. A negative decision – to i) refuse a protection claim, ii) refuse a “human rights claim,” or iii) revoke protection status on the grounds that removal would breach the UK’s obligations under either the Refugee Convention, the Human Rights Act 1998, or the UK’s obligations to those eligible for Humanitarian Protection – will result in a right of appeal to the First-tier Tribunal (IAC).Footnote 52 “Certificates” (explanations) can be issued on various grounds, including, for example, that the claim is “manifestly unfounded” or the claim is “late,” for which the only challenge is to seek judicial review.Footnote 53
A lawyer lodges appeals directly with the First-tier Tribunal (IAC). Prior to the hearing, a “bundle” of evidence, typically including any witness statements, expert evidence (country conditions, medico-legal, psychiatric, etc.), and country reports, are compiled. Following determination, either side may appeal to the Upper Tribunal (IAC) with First-tier or Upper Tier permission.Footnote 54 If refused permission, the Applicant’s only recourse is to seek judicial review in the Administrative Court. If successful, a hearing places in the Upper Tribunal concerning a “material error of law.” If an error is established, the Upper Tribunal will either rehear the appeal or “remit” the appeal to the First-tier Tribunal. Any further appeal is to the Court of Appeal, and only in extraordinary or compelling circumstances.Footnote 55
The Contents of an Asylum File
In their introduction to the first anthology about the specific experiences of Africans claiming asylum, Benjamin Lawrance and his co-editors describe the documentary production of the asylum as “rich documentary archives tethered to discrete legal contexts,” which speak to “analytical categories, constructed identities, and personal narratives of fear, trauma and violence.”Footnote 56 Understanding what these discrete legal contexts are, if and how it is possible to gain access, and how to protect the identities of the parties appearing in the documents, is key to navigating the unstable terrain of asylum archives. Asylum testimonies are multi-layered and living: each time an asylum seeker narrates a basis for a protection claim, and each time an earlier statement or interview is revisited, the archive expands.
Just as asylum claims are a transnational subgenre of legal transcripts known as petitions, interwoven within the practice of asylum claiming is an awareness of audience, such as the decision-makers, to whom the petition is addressed. Asylum narratives are polyvocal texts that that embrace different rhetorical strategies to engage multiple and heterogeneous audiences. To make sense of orientation, voice, and authorship of the asylum archive, a critical awareness of audience as theorized by performance studies is instructive. Asylum seekers appear cognizant of the benefits of strategic references to particular vocabulary, and they “perform” dimensions of claims attuned to audience biases and values, and the socio-cultural constraints of circumstance.Footnote 57
Notwithstanding these observations, the very term “asylum court” is a misnomer: no fixed definition or clear description of the asylum archive exists for a host of reasons, not the least of which are that the location and basis of the domestic fora in which asylum is claimed and adjudicated are multiple, shifting, routinely reorganized by national governments, and thus physically dispersed. In this section we outline the key productive sites that generate and store material that might in the future comprise the asylum archive.
Like the individuals whose stories they personify, asylum narratives are disembodied, straddling time, place, and space. Asylum archive dispersal is an underlying manifestation of asylum claiming. Much of the primary evidence – the grounds for flight or basis to resist forcible return – exists in the country of origin and the migratory act. But as the claim is made in a host country, the formal record, beginning with the moment the basis of fear is revealed, is co-constituted by the initiation of the protection petition. Asylum narratives – and what might be best visualized as the snowballing of documentation as claims move toward adjudication – provide a window into the changing contexts of persecutory forms, but the digital archival context remains inadequately theorized.
- The Asylum Petition in the United States
Returning to Kwasi, our US asylum applicant, he will at minimum have one government file, referred to as the A-File. The A-File refers to the Alien Registration or A-Number assigned to a non-citizen when they initially interface with the US immigration system, which can occur in a variety of ways, including an enforcement action or a benefits application. This system of unique seven-, eight-, or nine-digit numbers assigned to most non-citizen visitors began in the 1940s.Footnote 58 Since 1944, over sixty million A-Files have been created. The A-file originates in one of several ways when an individual makes an affirmative asylum application, and contains the application, any supporting documentation, the asylum officer’s interview notes, case research, biometrics, and decision information. The asylum office uses twelve computer databases.Footnote 59 USCIS continues to maintain the A-file until the individual naturalizes as a US citizen.
Beyond Kwasi, if the asylum seeker’s initial interaction with immigration was through an enforcement action, such as being stopped at the border, a Notice to Appear Form I–862 filed by DHS triggers the A-File’s creation. In addition to the above, the file contains interview notes, the “credible fear” determination, decisions related to the individual’s custody, and information about upcoming immigration hearings. USCIS does allow for e-filing for certain applications, but asylum applications must be physically sent by mail.Footnote 60
If an asylum applicant is placed in removal proceedings, the government attorney (ICE attorney) receives the physical A-File. The immigration court creates its own file consisting of applicant and ICE attorney filings. The court file also contains hearing information and audio recordings. When or after the I–589 is filed, the applicant can file supplementary evidence, such as witness declarations, expert statements, or physiological and psychological evaluations. Identity documents might include passport, birth certificate, school identification card, school transcripts, medical records, arrest records, political party membership cards, religious affiliation material, or marriage and death certificates. Secondary source material might include third-party country condition reports, as well as legal briefs or memoranda of law outlining eligibility for relief. All evidence must also be “served” to the government attorney, who may also proffer evidence or counter-evidence. During the hearing, witnesses testify in person, by telephone or videoconference, all of which is recorded. A judge may issue an oral decision upon conclusion along with a written document granting asylum or ordering removal, or take the case under consideration, and issue a written decision served by mail.
If the judge’s asylum decision is appealed (by either party), the court file along with transcription of hearing(s) are considered the record for the appeal and are sent to the Board of Immigration Appeals (BIA) in Falls Church, Virginia. Typically, the administrative appeal is decided without oral argument and the Board considers the record along with any legal briefs. Until 2002, every Board decision was decided by at least a three-member panel. In 2002, the Attorney General overhauled the appeal process barring explanation or reasoning.Footnote 61 The Board may simply affirm judge decisions, referred to as summary affirmance. If the issue raised on appeal is legally novel or results in a remand to the immigration judge, a panel of three Board members issues a written decision, providing some explanation for the basis of their decision. The Board publishes any decisions that establish a binding precedent.Footnote 62 If a Respondent receives an unfavorable decision, they may appeal to the Federal Circuit Court by filing a Petition for (discretionary) Review. Typically, the Court of Appeals looks to the final agency decision, the BIA decision, to determine an error of law or fact. Yet the Immigration Judge Court file is the final agency record for summary affirmances.Footnote 63 If a Circuit Court grants review, oral argument are scheduled before a three-judge panel, resulting in a written decision. If the decision sets precedent, it is published in the Federal Reporter and available electronically.
Overall, US asylum applicants may have four separate and distinct federal government files pertaining to their case – the A-file, the immigration court file, the Board of Immigration Appeals file, and the federal circuit court file – only one of which, the federal circuit court of appeals file, is available electronically. The majority of the sixty million A-Files remain in USCIS custody.Footnote 64 A-files of 350,000 immigrants born more than hundred years ago reside in the National Archives. Inactive A-files are stored in various locations around the country and can be accessed by filing a Freedom of Information Act request.Footnote 65 As of 2019, the US immigration court system, including immigration courts and the Board of Immigration Appeals, currently has no electronic or e-filing capacity. All court files are paper and stored in file rooms.Footnote 66 Federal Circuit Courts use e-filing to allow attorneys to file pleadings and other documents remotely.Footnote 67
In preparing an asylum case, an applicant’s attorney may draft multiple versions of declarations. An attorney maintains an applicant’s case file at their office. These physical or electronic records vary and may contain meeting notes, interview notes, potential legal theories, country research, correspondence, mental health evaluation, and other material. Much of this information is protected by attorney-client privilege and never part of any federal record. The only way to access these files is through permission from the asylum applicant. State Bar ethics rules govern how long attorneys must preserve client files, and law firms have proprietary record retention requirements.
- The Asylum Petition in the United Kingdom
Returning to Ama’s experience, the UK asylum petition is shaped by the structure of the Home Office.Footnote 68 An asylum applicant will be issued with a Home Office Reference Number and all files relating to this applicant start with this number (usually a letter followed by numbers). More than one file is usually indicated by number/001 number/002, and so forth. Much information is transferred to the Computerised Case Information Database. The current policy document relating to file management within UK Visas and Immigration (UKVI) outlines detailed information about the contents and structure.Footnote 69
Legal documentation produced may emanate from a number of venues. UKVI has a workforce of 7,500 people in the UK and overseas.Footnote 70 The First-tier and Upper Tribunal are located at regional hearing centres in London, Birmingham, Manchester, Newport, Stoke-on-Trent, North Shields and Bradford, and in some Immigration Removal Centres, such as Harmondsworth and Yarl’s Wood. They are staffed by full and part-time judges. Forty-one full-time Upper Tribunal judges are supplemented by part time judges and occasionally High Court judges, and seventy-five full-time First-tier Tribunal judges.Footnote 71
The Home Office transitioned to electronic records in 2005, although documents classified as Secret are maintained in paper or managed through classified electronic systems.Footnote 72 Whether statements and expert evidence are retained in digital format is unclear. The Home Office guides retention and disposal, setting out different time periods for different forms of information.Footnote 73 Broadly speaking, they advise a standard approach of three periods, namely: five or seven then delete or review, or fifteen years and then review. Under the terms of the Public Record Act (1958), the Department’s Historic Review Team considers the value of records and determines if they should be transferred to the National Archives or another repository, destroyed, or retained for ongoing business.Footnote 74 Ordinary case files will only be selected for transferral where the case sets an important legal or policy precedent.Footnote 75 At the time of writing there is a moratorium on Home Office record disposal.Footnote 76
The Information Services Centre is responsible for long-term storage of Home Office paper files; however, borders and immigration case files created by Home Office staff are (currently) managed off site by private contractors.Footnote 77 Third party access to Home Office files is restricted by data protection regulations.Footnote 78 All case judgments produced by the Upper Tribunal are publicly available on the Upper Tribunal (IAC) website. The British and Irish Legal Information Institute maintains a database of Upper Tribunal reported decisions and a selection of Administrative Court and Court of Appeal decisions.
Virtually all testimony/statements and client meetings records are kept (and often created) in electronic format. While multiple versions of statements and other information may be emailed between lawyers, clients, or relevant experts, only a final version is submitted to the Home Office or Courts. Any non-publicly available information is protected by lawyer-client privilege and inaccessible in the absence of applicant permission. Case files are usually maintained for six years after final decision under the Limitation Act 1980; however, there is currently no specific guidance from the regulatory body (the Solicitors Regulation Authority). Following this, lawyers are required to destroy files. Private individuals may retain files for research purposes.
Conclusion: mitigating digital dispersal for asylum archive usability
A critical awareness of how asylum archives are dispersed by the very act of asylum claiming is essential for any research. Many cases the authors have worked on over decades in immigration work have been viewed only piecemeal. Rarely has the total archival documentation pertaining to any particular claim been viewed. Both Erin Corcoran and Louise Hooper have represented asylum seekers before courts and tribunals, and have had access, albeit often temporary, to the government files described above. Benjamin Lawrance, on the other hand, acting in the capacity as expert witness, has only viewed materials supplied directly by the claimants’ legal representatives. And whereas Corcoran and Hooper are bound by law to dispose of such files at particular moments in time, Lawrance has a private collection of materials conveyed by mail and courier for research purposes. This fractured and incomplete perspective underscores the piecemeal and fragmentary nature of the asylum archive.
The term “digital dispersal” is a relative recent scholarly formulation and several seemingly irreconcilable conceptualizations exist in interdisciplinary literatures. It has been used to describe some of the more laudatory objectives of digital archiving.Footnote 79 It has been employed to convey the challenge of multiple digital platforms hosting multiple versions and documentation of the self, via user-generated shared and unshared content, a fragmentation that has been interpreted as “compartmentalization.”Footnote 80 Digital dispersal is also deployed to characterize the “precarious mode of embodiment” by multimedia technology performance artists, and the “libertarian and liberating” actions of open source publication and free software.Footnote 81 Each of these instances hints at potential aspects and impediments of the disperse digital archive, but they lack the grounding and depth with which historical researchers, legal theorists, or archivists are conversant.
Upon further reflection about collective asylum praxis, digital dispersal may most usefully be viewed as both an affirmative and defensive strategy on the part of the applicant’s and the host government’s legal representatives, as well as a consequence of policy compliance and commonplace practice by all parties extending to witnesses, researchers, experts, and decision-makers. Furthermore, in juxtaposition to any notion of a unitary archival order, or even the desire for coherent archival process, and returning to Foucault’s observation about multiplicities, digital dispersal is simultaneously haphazard, accidental, and intentional. Finally, digital dispersal points to the perpetual sense of incompletion with respect to the facts and expertise that assemble around individual asylum cases.
It is in the interests of the archivist and historian and indeed, all future-minded scholarly researchers, that digital dispersal of asylum documentation is mitigated. Complete archives of materials submitted with asylum petitions are key to recovering the future of the African past. Historians and legal scholars looking to the future, perhaps to writing the future of African mobilities, would do well to become better acquainted with the contours of immigration procedures and asylum courts. But more proactive action is also necessary. Historians and other scholars, perhaps referencing the recent Windrush Generation debacle, can encourage their professional associations to lobby governments to permanently secure physical copies of all digital documentation, and provide clear paths to access for future researchers.
