S0738248014000029a PDF

The Right to Asylum: Britains 1905 Aliens
Act and the Evolution of Refugee Law

ALISON BASHFORD AND JANE McADAM
From the 1880s, states and self-governing colonies in North and South
America, across Australasia, and in southern Africa began introducing
laws to regulate the entry of newly dened undesirable immigrants.
1
This was a trend that intensied exclusionary powers originally passed
in the 1850s to regulate Chinese migration, initially in the context of the
gold rushes in California and the self-governing colony of Victoria in
Australia.
2
The entry and movement of other populations also began to
Law and History Review May 2014, Vol. 32, No. 2
the American Society for Legal History, Inc. 2014
doi:10.1017/S0738248014000029
Alison Bashford is Professor of Modern History at the University of Sydney, and has
been elected Vere Harmsworth Professor of Imperial and Naval History, University
of Cambridge <Alison.bashford@sydney.edu.au>. Jane McAdam is Scientia
Professor of Law and the Director of the Andrew & Renata Kaldor Centre for
International Refugee Law, Faculty of Law, University of New South Wales <j.mca-
dam@unsw.edu.au>. This article has been generously funded by the Australian
Research Council, Project DP0984518. The authors thank Fiona Chong, Catie
Gilchrist, and Rebecca Zaman for research assistance.
1. For the proliferation of immigration law internationally see Adam M. McKeown,
Melancholy Order: Asian Migration and the Globalization of Borders (New York:
Columbia University Press, 2008); Marilyn Lake and Henry Reynolds, Drawing the
Global Color Line: White Mens Countries and the International Challenge of Racial
Equality (Cambridge: Cambridge University Press, 2008); and Andrea Geiger, Subverting
Exclusion: Transpacic Encounters with Race, Caste, and Border, 18851928 (New
Haven: Yale University Press, 2011).
2. For the United States, see, for example, Vernon M. Briggs, Immigration Policy and the
American Labor Force (Baltimore: Johns Hopkins University Press, 1984); Kitty Calavita,
US Immigration Law and the Control of Labor, 18201924 (London and Orlando:
Academic Press, 1984); Sucheng Chan, ed., Entry Denied: Exclusion and the Chinese
Community in America, 18821943 (Philadelphia: Temple University Press, 1991);
be regulated toward the end of the century, in particular the increasing
number of certain Europeans migrating to the United States. It is perhaps
unsurprising, then, that Britain followed this legal trend with the introduc-
tion of the 1905 Aliens Act, although it was a latecomer when situated in
the global context, and certainly within the context of its own Empire.
3
The
Aliens Act was passed in response to the persecution of Eastern European
Jews and their forced migration, mainly from the Russian Empire into
Britain. It dened for the rst time in British law the notion of the undesir-
able immigrant, criteria to exclude would-be immigrants, and exemptions
from those exclusions. The Aliens Act has been analyzed by historians and
legal scholars as an aspect of the history of British immigration law on the
one hand,
4
and of British Jewry and British anti-Semitism on the other.
5
Andrew Gyory, Closing the Gate: Race, Politics, and the Chinese Exclusion Act (Chapel
Hill: University of North Carolina Press, 1998); Desmond King, Making Americans:
Immigration, Race, and the Origins of Diverse Democracy (Cambridge, Mass.: Harvard
University Press, 2000); and Mae M. Ngai, Impossible Subjects: Illegal Aliens and the
Making of Modern America (Chicago: University of Chicago Press, 2004). Erika Pani has
explored early nineteenth century laws in the American context, Saving the Nation through
Exclusion: Alien Laws in the Early Republic in the United States and Mexico, The
Americas 65 (2008): 21746. For the Australian and British imperial context, see Charles
Price, The Great White Walls are Built: Restrictive Immigration to North America and
Australasia, 18361888 (Canberra: Australian National University Press, 1974); Robert
A. Huttenback, Racism and Empire: White Settlers and Colored Immigrants in the British
Self-governing Colonies, 18301910 (Ithaca: Cornell University Press, 1976); and Jeremy
Martens, A Transnational History of Immigration Restriction, Journal of Imperial and
Commonwealth History 34 (2006): 32344.
3. Alison Bashford and Catie Gilchrist, The Colonial History of the 1905 Aliens Act,
Journal of Imperial and Commonwealth History 40 (2012): 40937.
4. John Garrard, The English and Immigration, 18801910 (Oxford: Oxford University
Press, 1971); Bernard Gainer, The Alien Invasion: The Origins of the Aliens Act of 1905
(London: Heinemann Education, 1972); David Feldman, Was the Nineteenth Century a
Golden Age for Immigrants? The Changing Articulation of National, Local and
Voluntary Controls, in Migration Control in the North Atlantic World: The Evolution of
State Practices in Europe and the United States from the French Revolution to the
Inter-War Period, ed. Andreas Fahrmeir, Olivier Faron, and Patrick Weil (New York:
Berghahn Books, 2003), 16777; Ann Dummett and Andrew G.L. Nicol, Subjects,
Citizens, Aliens and Others: Nationality and Immigration Law (London: Weidenfeld and
Nicolson, 1990); Helena Wray, The Aliens Act 1905 and the Immigration Act
Dilemma, Journal of Law and Society 33 (2006): 30223.
5. L.P. Gartner, The Jewish Immigrant in England, 18701914 (London: Allen & Unwin,
1960); Alan Lee, Aspects of the Working Class Response to the Jews in Britain 1880
1914, in Hosts, Immigrants and Minorities: Historical Responses to Newcomers in
British Society, 18701914, ed. Kenneth Lunn (New York: St Martins Press, 1980),
13459; Benjamin J. Lammers, Alien Dick Whittingtons: The National Imagination and
the Jewish East End, Jewish Culture and History 1 (1998): 4153; Tony Kushner,
Racialisation and White European Immigration to Britain, in Racialization: Studies in
Law and History Review, May 2014 310
Exclusion based on ethnic and religious grounds has dominated both ana-
lyses. Thus, the Act has been framed as the major antecedent to Britains
more substantial and enduring legislative moves in the 1960s to restrict
entry, regulate borders, and nominate and identify undesirable entrants
effectively (if not explicitly) on racial grounds.
6
In this article, we refocus analysis onto the Acts most surprising yet
underinvestigated clause. Counterintuitively, given its exclusionary pur-
pose, the Act contained an asylum provision, permitting entry into the
United Kingdom for those who were at risk of persecution or prosecution
for political or religious reasons. The clause exempted from the bar on
entry. An immigrant who proves that he is seeking admission to this
country solely to avoid prosecution or punishment on religious or political
grounds or for an offence of a political character, or persecution, involving
danger of imprisonment or danger to life or limb on account of religious
belief, leave to land shall not be refused.
7
Historians have generally downplayed this clause, suggesting that its
overall impact was to constrain the prior British policy and practice of
open borders.
8
We argue that it had much greater signicance. Set within
an international context, the codication of a right to asylum was highly
unusual. Although it was undisputed at the time, as now, that states pos-
sessed the right under international law to grant asylum to whomever they
wished,
9
the statute framed it as a right that individuals could claim to secure
their admission to Britain. The mandatory language of the Actleave to
land shall not be refusedtransformed the states discretion to turn away
certain persons from the border into a right of entry for those eeing
Theory and Practice, ed. Karim Murji and John Solomos (Oxford: Oxford University Press,
2005), 20725; and David Feldman, Jews and the British Empire, c. 1900, History
Workshop Journal 63 (2007): 7089.
6. Colin Holmes, John Bulls Island: Immigration and British Society, 18711971
(London: Macmillan, 1988); and Dallal Stevens, UK Asylum Law and Policy: Historical
and Contemporary Perspectives (London: Sweet and Maxwell, 2004), 1932.
7. Aliens Act 1905 (5 Edw. VII. c. 13), s. 1(3)(d).
8. Michael R. Marrus, The Unwanted: European Refugees from the First World War
through the Cold War, 2nd ed. (Philadelphia: Temple University Press, 2002), 37.
9. In some circumstances, states are obliged to limit that power in the interest of other
states; for example, by agreeing that certain categories of individuals, such as common crim-
inals and war criminals, are not entitled to asylum: Felice Morgenstern, The Right of
Asylum, British Year Book of International Law 26 (1949): 327, 330. This is the reason
for the exception to the right to asylum in article 14(2) of the UDHR (adopted December
10, 1948) United National General Assembly (UNGA) res. 217A (III): This right may
not be invoked in the case of prosecutions genuinely arising from non-political crimes or
from acts contrary to the purposes and principles of the United Nations. See also Hersch
Lauterpacht, International Law and Human Rights (London: Stevens and Sons, 1950).
The Right to Asylum 311
religious persecution or political offences. Viewed both in its historical con-
text as well as in light of subsequent British practice, it was the high water-
mark of such protection.
The Aliens Act, therefore, needs to be assessed as part of the inter-
national history of refugee law as much as being assessed as part of the
history of domestic immigration law.
10
The asylum clause seems known
to only a few scholars of international refugee law, and its full signicance
has not been recounted. Guy Goodwin-Gill has recognized that the Act cre-
ated statutory guarantees of asylum [that] were generous by any modern
standard,
11
and with McAdam, has stated that a sense of the need to pro-
tect the persecuted can be gathered from the United Kingdoms 1905
Aliens Act.
12
Dallal Stevens has explained that the Acts inclusion of
an asylum clause marked it as a novel departure from past legislative
practices, leading to the development of a modern form of UK refugee
law, with refugees dened for the rst time in statutory form.
13
Atle
Grahl-Madsen has noted in passing that the Act, and its successors of
1914 and 1919, were particularly important stepping-stones in the his-
tory of modern aliens legislation.
14
James Hathaways periodization of
international refugee law has been inuential in reinforcing the idea that
dening the refugee by virtue of an individual fear of persecution was
late to emerge, however.
15
In this article, we show that these concepts
10. Immigration law and refugee law are not synonymous, although in British scholarship
as elsewhere, they are often taken to be. Immigration law describes the practice of states in
regulating, at their discretion, the admission and removal of non-citizens to and from their
territory. Refugee law, by contrast, is premised on binding international legal obligations
that require states to extend protection to certain classes of persons at risk of persecution
or other forms of serious harm. However, as refugee provisions are typically subsumed
within domestic immigration statutes, the basis of the distinction between refugee and immi-
gration law is obscured. This was a trend anticipated by the Aliens Act. States retain the dis-
cretion to grant asylum beyond this designated class if they so choose. These issues are
pursued to some extent by Prakash A. Shah, Refugees, Race and the Legal Concept of
Asylum in Britain (London: Cavendish, 2000). However, neither the signicance of religious
persecution, nor the connection with extradition law, is examined there.
11. Guy S. Goodwin-Gill, International Law and the Movement of Persons between States
(Oxford: Clarendon Press, 1978), 99.
12. Guy S. Goodwin-Gill and Jane McAdam, The Refugee in International Law, 3rd ed.
(Oxford: Oxford University Press, 2007), 202.
13. Stevens, UK Asylum Law and Policy, 33, 39.
14. Atle Grahl-Madsen, The Status of Refugees in International Law, vol 1 (Leyden: A.W.
Sijthoff, 1966), 11. Historian Irial Glynn has noted that the 1951 Refugee Convention
emphasized individual persecution, much like the British 1905 Aliens Act: Irial Glynn,
The Genesis and Development of Article 1 of the 1951 Refugee Convention, Journal
of Refugee Studies 25 (2011): 134, 141.
15. James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991).
and apparent innovations were already features of Britains 1905 Aliens Act.
Fully incorporating the Aliens Act into refugee law scholarshipboth dom-
estic and internationalre-periodizes the received history of how, where,
and when the right to asylum from persecution became codied.
Our argument proceeds in three parts. First, the Aliens Act uniquely, if
briey, codied an individual right to asylum in British law. Second, it
effectively established a refugee category as part of immigration law, a
practice that became standard in the later twentieth century and remains
so today, but which was not the case previously. Third, the Aliens Act
marked the moment when what we now think of as asylum, namely pro-
tection from persecution, entered domestic immigration law. Moreover, the
Act named religious persecution. Thus, the concept of asylum in domestic
law started to transform from an exception to extradition for a political
offence, which was its nineteenth century connotation, into a basis for
admission for humanitarian reasons.
16
The introduction of an asylum clause is a British distinction for which
early twentieth century politicians in Westminster and policy makers in
Whitehall, responsible for the asylum clause, might have been justly
proud. But the British defense of an individuals right to asylum was as
short lived as the Act itself, suspended on the declaration of war in
1914. In this article, we briey trace the idea of a right to asylum through
interwar and mid-twentieth century discussions on international law,
including the critical drafting of the Universal Declaration of Human
Rights (UDHR) in the late 1940s.
17
The defense of an individuals
right to asylum, almost chauvinistically argued into British domestic law
at the beginning of the century, was rejected by British delegates
during the UDHRs drafting. Indeed, it was a British amendment that
reduced the UDHRs asylum provision to nothing more than a restatement
of the existing position under international law; namely, that it was the pre-
rogative of the state to grant asylum should it so choose, rather than the
16. That said, there was no right of admission in international law: see state practice cited
in Morgenstern, The Right of Asylum, 327; and Musgrove v Chun Teeong Toy (1891) AC
272. Today, whereas aliens do not possess a right to be admitted to another country, the
principle of non-refoulement precludes rejection at the frontier. In other words, states must
not return persons to any territory where they have a well-founded fear of persecution or face
a real risk of certain other forms of serious harm. In practice, this amounts to what Noll has
described as a right to transgress an administrative border: Gregor Noll, Seeking Asylum
at Embassies: A Right to Entry under International Law? International Journal of Refugee
Law 17 (2005): 542, 548; compare with Morgenstern, The Right of Asylum, 34648, 350
52 on the pre-1951 Refugee Convention position and the view that, even in 1949, as a mat-
ter of policy, refugees are not sent back to their home state. (348, emphasis added) See
further, Goodwin-Gill and McAdam, The Refugee in International Law, ch. 5.
17. UDHR (adopted December 10, 1948) UNGA res. 217A (III).
right of a persecuted individual to be granted it. It was this conventional
understanding that the Aliens Act had reversed, albeit momentarily.
Although legal scholarship traditionally separates the study of domestic
and international law, historical scholarship can show just how articial
that separation is. The Aliens Act was itself regarded at the time as a dom-
estication of international law. It was also an important domestic antece-
dent to modern international refugee law. Such historical antecedence
does not necessarily equate to a legal precedent or establish a causal
link. Far from being a model for the later international codication of
the right to asylum, the Aliens Act proved, if anything, to be a counter-
model, a point from which the British themselves, in particular, retreated.
This history helps us understand some of the limitations of the asylum pro-
vision of the UDHR. Ironically, the 1905 Acttypically criticized for its
racist exclusionsturns out to have upheld an individual right to asylum
that even the UDHR did not.
The 1905 Aliens Act
In 1882, the so-called May laws enacted by the Russian tsar, Alexander
III, affected Jews in Russia and Russian Poland, restricting their social and
economic participation, conduct, and mobility. Pogroms through the 1880s
and 1890s forced many thousands to migrate from ports in continental
northern Europe, with most intending to land eventually in the United
States, travelling via British ports. Some, instead, settled in Britain,
although the number doing so was not large: approximately 120,000
150,000 European Jews settled there between 1881 and 1914.
18
The lack of clarity on numbers is precisely to the point. There was no
comprehensive system of regulation, restriction, or even of registration of
entrants in Britain, notwithstanding the Registration of Aliens Act 1836,
a statute so thinly implemented, if at all, that by the end of the century
it had been more or less forgotten. In 1891, the Privy Council had afrmed
that the Crown had the power to legislate to prevent foreigners from enter-
ing its territory.
19
However, Britain itself had no established practice by
18. Parliamentary discussion of the aliens bills in 1904 brought to light the difculties in
ascertaining or even estimating the number of aliens settling in the United Kingdom. See,
Aliens Bill, The Times, April 26, 1904, newscutting in The National Archives, London
(hereafter TNA) Home Ofce (hereafter HO) 45/10303/117267/8. Gartner cites 120,000.
The Jewish Immigrant in England, 30; Wray suggests 150,000. Wray, The Aliens Act
1905, 308.
19. In Musgrove v Chun Teeong Toy (1891) AC 272, 277, the Privy Council noted that
there was no legal authority to support the proposition that an alien has a legal right to
which people were refused entry or detained, except as part of emergency
quarantine regulations, themselves diminishing as the century pro-
gressed.
20
This is what the Aliens Act turned around. It received royal
assent in August 1905, and took effect from January 1, 1906.
The statute dened certain immigrants as undesirable using a range of
criteria, set out a number of exceptions, and detailed the processes by
which undesirable immigrants could be turned back at various ports, be
deported if already resident, and appeal against such decisions.
Undesirable immigrants were dened as those who: (a) could not demon-
strate the means to decently support themselves and any dependents; (b)
were a lunatic or an idiot, or had any other disease or condition likely to
render them a public charge; or (c) had been sentenced for an extraditable,
non-political crime in a foreign country with which Britain had an extradi-
tion treaty.
21
In line with extradition law (indeed, as the ipside to extradi-
tion as a defense to removal), the Act contained an exception for
immigrants seeking admission . . . solely to avoid prosecution or punish-
ment on religious or political grounds or for an offence of a political char-
acter.
22
And, in a new twist, it contained an exception for immigrants
seeking admission to avoid persecution, involving danger of imprison-
ment or danger to life or limb on account of religious belief.
23
In marked contrast to the relatively easy passage of immigration statutes
in other jurisdictions in this period, the passage of the Aliens Act was
fraught with political difculty. Multiple Aliens Bills introduced by the
Conservativesin January 1897, February 1898, and April 1904were
roundly defeated, mainly, but not solely, by the Liberals.
24
The local
enter British territory. See also Attorney-General for the Dominion of Canada v Cain (1906)
AC 542, 546 relating to the powers of the Dominion Government of Canada to expel aliens.
Vattel was cited: One of the rights possessed by the supreme power in every State is the
right to refuse to permit an alien to enter that State, to annex what conditions it pleases to
the permission to enter it, and to expel or deport from the State, at pleasure, even a friendly
alien, especially if it considers his presence in the State opposed to its peace, order, and good
government, or to its social or material interests: Vattel, Law of Nations, book 1, s. 231; book
2, s. 125.
20. Feldman, Was the Nineteenth Century a Golden Age for Immigrants? 169. For an
English system of quarantine that minimized border control, see Krista Maglen,
Importing Trachoma: The Introduction into Britain of American Ideas of an Immigrant
Disease, 18921906, Immigrants and Minorities 23 (2005): 8099.
21. Aliens Act 1905, s. 1(3).
22. Ibid., s. 1(3)(d).
23. Ibid.
24. The party-political intricacies, investments, and implications of the Aliens Bills and
the Aliens Act have been richly detailed by Bernard Gainer in an early study that remains
the distinguished account. Gainer, The Alien Invasion.
context that gave rise to the early bills was the coincidence of the Jewish
pogroms, the 1890s economic depression, and the rise of British labor poli-
tics in which Londons East End votes were critical in a franchise that
entitled all male householders.
25
Anti-immigrationists cast Eastern
European and Jewish immigrants as a threat to wages and industrial con-
ditions, arguing in particular that the presence of alien workers com-
pounded the sweating systems of labor that were just then being
politicized by an emerging Labor movement. As in other national contexts
in which immigration laws were being introduced, a core rationale for the
restriction of entry of aliens centered on the regulation of labor.
26
Unlike
other national contexts, however, there was a long British tradition of lib-
eral politics that objected to the regulation of anything, including working
conditions and immigration. On these grounds and others, the successive
Aliens Bills and the very principle of immigration restriction were resisted
by the Liberals as an attempt to introduce back-door labor law, and even
as anti-sweating measures.
27
Immigration restriction raised the great politi-
cal dividing line between protectionist policies on the one hand, and
(Liberal-endorsed) free trade on the other. The young Winston Churchill,
for example, at that point a member of the Liberal Party, unreservedly
objected to immigration restriction on these grounds. Deeply opposed to
protection of the labor market, he argued that the free movement of people
necessarily went along with the free trade of goods.
28
Throughout the 1890s and into the early twentieth century, a stark
and populist anti-Semitism was at work in the East End of London. And
although regularly denied at the time, it was evident in Westminster and
Whitehall as well.
29
It is also the case, however, that many stood ready
to expose anti-Semitism in the context of the Aliens Bills and the rise of
anti-immigration lobbying.
30
Therefore, if the bills were proposed and dri-
ven through as part of British anti-Semitism, they were also resisted as part
of British opposition to anti-Semitism. As the parliamentary debate on the
unsuccessful Aliens Bill of 1904 was reported in The New York Times:
Opposition to the Aliens Bill . . . was based largely on the belief that
the measure was essentially Anti-Semitic. Indeed it was alleged by some
25. Ibid., 1801.
26. See Huttenback, Racism and Empire; and Calavita, US Immigration Law.
27. Gainer, The Alien Invasion, 190.
28. Ibid., chs. 6-8. See also Satvinder Juss, Immigration, Nationality, and Citizenship
(New York: Mansell, 1993).
29. See The Times news clippings on the Aliens Bills 1904 and 1905, TNA HO 45/10303/
117267.
30. See, for example, House of Commons debate on the Aliens Bill reported in The Times,
April 26, 1904.
speakers that the bill actually had its origin in hatred of the Jews.
31
A size-
able Jewish community was part of the East End constituency, and their
interests were taken up directly by some members of Parliament, notably
Stuart Samuel, the Liberal member for Whitechapel. In public debates on
the bills, in organized lobbying against them, and in monitoring the
implementation of the Act as nally passed, Jewish members of Parliament,
such as Samuel, and, especially, Lord Rothschild were key gures: interme-
diaries among the Jewish community, Whitehall civil servants, and their fel-
low politicians across party lines.
32
It was entirely understood that the Aliens Bills and ensuing Aliens Act
were to be applied with respect to Eastern European Jews, as they formed
the bulk of entrants under the Acts denition of immigrant in those
years. However, neither the bills, nor the Act, nor the returns to be com-
pleted at port of entry, mentioned Jews specically.
33
British governments
and civil servants were traditionally uncomfortable about making legal dis-
tinctions between individuals on the basis of nationality, race, or religion.
For example, when various self-governing colonies within the British
Empire sought to mention Chinese, Indians, or Japanese in their immigra-
tion statutes, it was the Colonial Ofce in London that typically tempered
such propositions.
34
The explicit nomination of a Chinese Exclusion
Act, for example, or the use of Asiatic as a category for exclusion,
was something that successive Colonial Secretaries in London opposed,
and the reason why royal assent was sometimes withheld. Likewise, in
31. Poor Jews Defended in House of Commons: Anti-Semitism Denounced in Debate on
Aliens Bill. Measure Hotly Attacked. Government denies it was Prompted by Dislike of
Jews or Intended to Impair Right of Asylum, New York Times, April 26, 1904.
32. Our inquiries proved certainly to the large majority of Commissioners that the advent
of the alien immigrant was not a source of disadvantage, but, on the contrary, of great advan-
tage to this country. See Lord Rothschild, Notes of Deputation from the Jewish Board of
Deputies on the Aliens Bill, May 19, 1904, TNA HO 45/10303/117267/78. Rothschild
was referring to the Royal Commission on Alien Immigration on which he sat (1892).
Subsequently, he served as intermediary between the Jewish Board of Deputies and the
government.
33. See returns included in Memorandum on the Proposed Administration of the Act,
January 18, 1906, TNA HO 45/10326/131787/5. The returns sought information on age
and sex, nationality, last permanent place of address, proposed place of abode in the
United Kingdom, occupation, means, prospects of support, conviction of crimes, and
whether the entrant have ever been expelled from the United Kingdom.
34. For example, when the Home Ofce audited the then colonial immigration laws, it
noted specically that in 1896 the New Zealand legislature passed an act for the restriction
of Asian immigration, but the Royal Assent was withheld, the Colonial Ofce objecting to
any measure based expressly on racial distinction. AliensImmigrationAs to the
Immigration Laws of the Principal British Colonies, February 12, 1907, TNA, HO
112229/20.
most immigration restriction statutes of the period, the complete exclusion
of people by ethnicity, race, or religion was never intended (or realized).
Immigration laws in North America and Australasia were typically class-
based measures aimed at laborers or the destitute, distinguishing between
steerage and cabin class passengers.
35
The Aliens Act was no exception. It dened immigrant as an alien
steerage passenger,
36
and, further, leaving discretion with the Secretary
of State, dened a steerage passenger as any passenger not deemed by
the Secretary of State to be a cabin passenger.
37
It applied only to
ships that held twenty or more such immigrants,
38
and this had no appli-
cation to other people seeking leave to land. One criterion for exclusion
was steerage passengers incapacity to show that they could support them-
selves nancially. Again, this was standard for most immigration laws at
the time; indeed, it was derivative of United States and colonial laws
that sought to exclude people most likely to become a public charge.
39
The Aliens Act, on its own terms, did not seek to exclude all aliens, or
all Jews, but instead only criminal aliens, the destitute, the ill, or the
inrm who, it was claimed, would burden Britains Poor Law institutions
and its developing health and welfare systems. These, for better or worse,
were the undesirable immigrants.
Despite their longstanding opposition to any immigration restriction
measures, it fell to the newly elected Liberal government to rst implement
the Aliens Act from early 1906. They did not repeal the controversial legis-
lation, but they did seek to mitigate its effects, specically with respect to the
asylum clause. By March 1906, the Secretary of State, Herbert Gladstone,
issued a memorandum to the immigration ofcers who made portside
decisions about individuals and the immigration boards charged with hearing
35. See Paul A. Kramer, Empire against Exclusion in Early Twentieth Century
Trans-Pacic History, Nanzan Review of American Studies 33 (2011): 1332. For labor,
see Matthew Pratt Guterl and Christine Skwiot, Atlantic and Pacic Crossings: Race,
Empire, and the Labor Problem in the Late Nineteenth Century, Radical History
Review 91 (2005): 4061.
36. Aliens Act 1905, s 8(1).
37. See also Aliens Act 1905, Memorandum on the Proposed Administration of the Act,
TNA HO 45/10326/13787/5.
38. This momentarily changed to twelve immigrants per ship, but Secretary of State
Herbert Gladstone restored the original twenty of the statute in early 1906. Aliens Act
1905, Memorandum on the Proposed Administration of the Act, TNA HO 45/10326/
13787/5.
39. Bashford and Gilchrist, The Colonial History of the 1905 Aliens Act. See also
Alison Bashford, Insanity and Immigration Restriction, in Migration, Health and
Ethnicity in the Modern World, ed. Hilary Marland and Catherine Cox (Basingstoke:
Palgrave Macmillan, 2013, 1435).
appeals against those decisions. Upholding criticism that the boards were
ruling beyond the law, he reinforced the original parliamentary intention:
that only undesirable aliens should be excluded. It was never intended, he
instructed, that the provision should be enforced if refusal of leave to
land would involve great personal hardship or suffering in the case of
women and children. So too a man who is free from any infectious or objec-
tionable disease may be in a critical state of health, and to refuse him leave to
land might expose him to cruel hardship. Again the statements of a man
claiming to be a political or religious refugee may be insufcient or inaccur-
ate yet he may be exposed to serious risk from political causes if he is forced
to return. Events in Russia had become critical in the preceding year. In rec-
ognition of the present disturbed condition of certain parts of the
Continent, Gladstone instructed that the benet of the doubt may be
given in favour of immigrants who allege that they are ying from religious
or political persecution in disturbed districts, and that in such cases leave to
land may be given.
40
Historians tend to stress the exclusionary powers of the Aliens Act as
foreshadowing discriminatory dimensions of later Commonwealth immi-
gration statutes. However, the asylum clause sets the early Act apart.
The particular British resistance to immigration law, and, when nally
passed, the Liberal governments concern to minimize its exclusionary
powers in practice, are arguably as signicant as the statute having been
passed at all. Nothing like this critique and opposition took place in com-
parable jurisdictions in the late nineteenth and early twentieth centuries.
Understanding this peculiarly British disinclination to regulate the entry
of aliens is key to understanding an asylum clause that would otherwise
seem paradoxical.
Asylum: Those Ancient Traditions of Freedom and Hospitality
The Liberals in particular objected to laws that constrained free movement.
This was instrumentally connected with their advocacy of free trade. But it
was not only instrumental: there was a principle of free movement that
required defense. For many British parliamentarians, then, the introduction
of the Aliens Act was not merely a natural response to a world of
40. Memorandum to the Members of Immigration Boards, March 9, 1906, TNA HO 45/
10326/131787/9. There was another draft that was stronger, requiring that the benet of the
doubt be given: the benet of the doubt, where any doubt exists should be given in favour
of the immigrant, and leave to land should in such cases be given. This sentence was chan-
ged by hand to: where any doubt exists, as to the truth of the allegation, will be allowed,
and leave to land will be given.
increasing global movement (and regulation of that movement); it was a
highly controversial step. It was considered drastic and revolutionary
in its character, even by those who put forward the various bills.
41
Many considered that the principle of free movement, and, accordingly,
the tradition of having no entry regulations, was part of what distinguished
British practice; even part of what constituted British liberty. Labour MP
John Burns, for example, betrayed the nationalism at stake in defending the
principle and practice of free movement, announcing in parliamentary
debate that it was because this was the only civilised nation that did
not possess this kind of legislation that he was proud of being a Briton.
42
This had long been perceived as a liberty dened against continental
practice, but in the context of the immigration laws emerging in so many of
the British self-governing colonies and especially in the United States, the
dening comparative context had shifted somewhat. The question of main-
taining or limiting free movement was now compared to New World
nations that were leading the trend in regulating entry, and in dening
undesirable immigrants. Other jurisdictions legislating to restrict the free
movement initially of Chinese peoplein all the Australian colonies,
New Zealand, the United States, Canada, Natal, the Cape Colony, and
Newfoundlandhad fewer qualms about cutting across any principle of
international law that safeguarded the right to free movement.
43
Ironically, perhaps, it was Chinese people themselves, rather more than
the worlds neo-Britons, who articulated the right to free movement
that many in Westminster saw as a dening British characteristic.
44
Related to this was the belief of many members of Parliament that the
restriction and regulation of would-be immigrants eeing persecution
undercut a strong traditional British self-story that their nation was, and
41. Asquith spoke in support of the bill, but nonetheless recognized its signicance: This
Bill, it must be conceded, is an entirely new departure in legislation, for it gives to an ofcer
of the Executive, by his own act, without any reference to a Court of law or to judicial pro-
cedure, power to prohibit admission to these shores of any person who is not a subject of the
Crown, provided he comes within certain categories. Aliens Bill, The Times, April 26
1904, TNA HO 45/10303/117267/8. See also Gainer, The Alien Invasion, 181.
42. John Burns, Hansard, Parliamentary Debates, House of Commons, April 25, 1904,
4th series, vol. 133, col. 1150.
43. Jane McAdam, An Intellectual History of Freedom of Movement in International
Law: The Right to Leave as a Personal Liberty, Melbourne Journal of International Law
12 (2011): 2756.
44. Marilyn Lake, Chinese Colonists Assert Their Common Human Rights:
Cosmopolitanism as Subject and Method of History, Journal of World History 21
(2010): 37592. See also L. Kong Meng, Cheok Hong Cheong, Louis Ah Mouy, eds.,
The Chinese Question in Australia, 187879 (Melbourne: F.F. Bailliere, 1879).
should remain, a place of asylum and refuge from tyranny.
45
Britain had a
long tradition of granting asylum to those eeing political and religious
harms in a way that distinguished it from other countries.
46
The novelty
in British practice was that it was, in principle, undiscriminating.
Whereas European countries tended to offer asylum on a selective basis,
dependent upon an individuals nationality or political views, Britain in
theory sheltered anyone, and loudly proclaimed its distinction in doing
so. In appealing to this precious heritage, as Conservative Prime
Minister Arthur Balfour put it,
47
both proponents and opponents of the
Aliens Bills and the Act were rehearsing an aspect of British national iden-
tity that reached back centuries into a Protestant/Catholic past, but that was
raised over and over again during the politically tumultuous nineteenth
century. It was political asylum most often referred to, although it was
understood that Britain had a longer history of granting asylum on religious
grounds as well, in particular to continental Protestants, most famously the
Huguenots.
This was all part of British liberty, Sir Erskine May claimed in his
Constitutional History of England, written just after the passage of the
Aliens Act.
It has been a proud distinction for England to afford an inviolable asylum to
men of every rank and condition, seeking refuge on her shores, from perse-
cution and danger in their own lands. England was a sanctuary to the Flemish
refugees driven forth by the cruelties of Alva; to the Protestant refugees who
ed from the persecutions of Louis XIV; and to the Catholic nobles and
45. See, for example, Lord Campbells invocation of the tradition of asylum in Britain in
his summing up to the jury in the 1858 case of R v Bernard, where he referred to that asy-
lum which it has been the glory of this country to afford to persecuted foreigners. That is a
glory which I hope ever will belong to this country. That asylum, however, remember,
amounts to thisthat foreigners are at liberty to come to this country and to leave it at
their own will and pleasure, and that they cannot be disturbed by the Government of this
country so long as they obey our laws; and they are under the same laws as native-born sub-
jects, and if they violate those laws they are liable to be prosecuted and punished in the same
manner as native-born subjects, cited in N.W. Sibley and Alfred Elias, The Aliens Act and
the Right of Asylum, Together with International Law, Comparative Jurisprudence, and the
History of Legislation on the Subject, and an Exposition of the Act (London: William
Clowes, 1906), 134.
46. Dummett and Nicol, Subjects, Citizens, Aliens and Others, 93; Bernard Porter, The
Refugee Question in Mid-Victorian Politics (Cambridge: Cambridge University Press,
1979), ch. 1; and Maurizio Isabella, Risorgimento in Exile: Italian migrs and the
Liberal International in the Post-Napoleonic Era (Oxford: Oxford University Press,
2009). For an overview of British practice historically, see Stevens, UK Asylum Law and
Policy, ch. 1.
47. Arthur Balfour, Hansard, Parliamentary Debates, House of Commons, July 19, 1905,
priests who sought refuge from the bloody guillotine of revolutionary France.
All exiles from their own countrywhether they ed from despotism or
democracy, whether they were kings discrowned, or humble citizens in
dangerhave looked to England as their home. Such refugees were safe
from the dangers which they had escaped. No solicitation or menace from
their own Government could disturb their right of asylum; and they were
equally free from molestation by the municipal laws of England.
48
The provision of asylum was seen by many as an inviolable British tradition
that should be upheld at almost any cost. Winston Churchill, for example,
opposed the Aliens Bills because he deplored any suggestion that Britain
should refuse entry to those eeing persecution. In a letter to The Times
in 1904, he urged against forgetting the old tolerant and generous practice
of free entry and asylum to which this country has so long adhered and from
which it has so greatly gained. He appealed to a specically English iden-
tity derived from this apparently ancient practice, and provocatively invited
proponents of the Aliens Bill to argue otherwise. I for one believe that they
[English working men] will disavow an attempt to shut out the stranger
from our land because he is poor or in trouble, and will resent a measure
which without any proved necessity smirches those ancient traditions of
freedom and hospitality for which Britain has been so long renowned.
49
Among the English working men mentioned by Churchill was the
Anglo-Jewish community. In the context of the Aliens Bills, they, too,
loudly proclaimed and mobilized the British tradition of asylum. The
Jewish Board of Deputies was not opposed to immigration restriction as
such, agreeing that measures needed to be put in place to protect against
the invasion of undesirables either criminal or diseased.
50
But the tra-
dition and principle of refuge needed safeguarding. Expediently, perhaps,
the Zionist Association spoke of a Britain that had ever been a land of the
freethe asylum of the oppressed.
51
In one sermon, the Reverend
S. Singer appealed to this popular nationalism in which Anglo-Jews them-
selves were invested: We could not believe that the majority of our coun-
trymen would lend themselves to anything like a reversal of the principles
upon which the fame as well as the prosperity of the Empire had been built
up.
52
It was with some political effect that the Jewish Chronicle
48. Sir Thomas Erskine May, The Constitutional History of England since the Accession
of George the Third, vol. 2 (London: Longmans, Green and Co., 1912), 156.
49. Winston Churchill to Mr. N. Laski, The Times, May 31, 1904, 10.
50. The Committee Act . . . have not the slightest desire to champion aliens of immoral or
criminal character. The Aliens Bill, 1905: Report of London Committee of Deputies of the
British Jews (London: Wertheimer, Lea & Co., 1905), TNA HO 45/ 10303/ 117267/56.
51. Resolution, The Zionist Association, The Jewish Chronicle, May 13, 1904, 31.
52. The Reverend S. Singer on the Bill, The Jewish Chronicle, April 28, 1905, 11.
proclaimed the 1904 Aliens Bills failure to include an asylum clause as
simply un-English.
53
This was a far more expedient charge than one
of anti-Semitism, which one might expect from the leading
Anglo-Jews. In fact, Jewish deputations did not just avoid anti-Semitic
accusations in these public debates, they also diplomatically defended poli-
ticians against them. The charge of being un-English was a different
story, however, and in the circumstances possibly more effective.
Drafting Asylum
One difculty when it came to drafting the Aliens Bills was that this appar-
ently cherished principle of asylum had functioned as traditional policy
over the nineteenth century not by law, but by the absence of laws.
54
This was one reason why the early Aliens Bills had no asylum clause.
Another was that the various United States and colonial immigration
restriction laws on which the bills were modeled had no such clause either,
although for different reasons. Fairly quickly, however, the need to safe-
guard asylum became one of the main points of contention. Over 1904
and 1905, when a new set of Aliens Bills was introduced, it was less the
principle of asylum per se that was most in question, than what effect an
aliens act would have on traditional, but uncodied, practice and policy;
whether, therefore, the principle of granting asylum needed safeguarding
by explicit codication, and, subsequently, whether religious grounds for
refuge should be added to the conventional political grounds for protection.
As will be discussed, although asylum on political and religious grounds
was historically part of British practice, by the nineteenth century, the
notion of asylum connoted political asylum, which was part of extra-
dition law.
55
This makes sense if one considers that previously, in the
absence of laws regulating the admission of aliens, it was only when
they were threatened with removalfor example, when another state
requested their extraditionthat any consideration of harm to which
53. Notes of the Week: The Right of Asylum, The Jewish Chronicle, July 14, 1905, 56.
54. Porter, The Refugee Question, 3.
55. Balogh suggests that religious persecution originally underpinned the concept of the
refugee (hence the Oxford English Dictionarys earliest attribution of the term refugee
to the Huguenots eeing France in the seventeenth century). He writes: when the separation
of church and state was virtually completed and the church revealed as a purely voluntary
association of individuals of common creed for the purpose of common worship, religious
persecution came to an end to make room for persecution on purely political grounds, begin-
ning with the French Revolution, the Empire and the Restoration. Elemr Balogh, World
Peace and the Refugee Problem, Hague Academy of International Law Recueil des Cours
75 (1949): 381.
they might be subjected on return became relevant. Accordingly, the clause
that was eventually to include religious persecution began as a clause that
dened an extradition exception. In the case of an immigrant who proves
that he is seeking admission to this country solely to avoid prosecution for
an offence of a political character, leave to land shall not be refused on the
ground merely of want of means, or the probability of his becoming a
charge on the rates.
56
The wording of this draft clause derived from the 1870 Extradition
Act.
57
Stretching the provision of political asylum to include recognition
of religious persecution became the key point of difference between
Liberal and Conservative positions. As Stuart Samuel, MP, explained to
the Jewish community, An asylum has invariably been afforded to the
victims of religious disability, to the great advantage of this country, and
I fail to see by what right this great principle of liberty is now being aban-
doned, as is proposed under the present Bill.
58
Prime Minister Balfour conceded initially to an amendment that would
admit aliens eeing to Britain to avoid persecution involving danger of
imprisonment or danger to life or limb.
59
Although the Jewish community
thought this an improvement to the legislation that would justify the recep-
tion of Jewish fugitives from critical events taking place in Lodz, Odessa,
56. Aliens Bill 187, 1905, TNA HO 45/10303/114267/62.
57. Mr. H.L.W. Watson had asked the Secretary of State for the Home Department
whether the words prosecution for an offence of a political character in Clause 1 sub-
section 3 of the Aliens Bill, covers prosecution for an offence of a religious character.
The secretary of state was advised that the wording was derived from the Extradition Act:
I suppose offences of a religious character (whatever that phrase may mean) would in
some circumstances fall within this saving words, and others not. Memorandum, draft
responses to House of Commons questions on the Aliens Bills, Secretary of State, May 2,
1905, HO 45/ 10303/ 117267/49, TNA. The Extradition Act 1870 (33 & 34 Vict. c. 52),
s. 3(1) provided: A fugitive criminal shall not be surrendered if the offence in respect to
which his surrender is demanded is one of a political character, or if he prove to the satis-
faction of the police magistrate or the court before whom he is brought on habeas corpus, or
to the Secretary of State, that the requisition for his surrender has in fact been made with a
view to try or punish him for an offence of a political character.
58. Stuart M. Samuel, M.P.: Opinions on the Aliens Bill, The Jewish Chronicle, May 5,
1905, 25.
59. The Right of Asylum, The Jewish Chronicle, July 14, 1905, 56, documenting the
amendment brought forward by Sir Charles Dilke. Life and limb can be traced to 1378.
Legal scholars of the period argued that the widespread practice of granting sanctuary to debtors
seeking to escape their creditors and other fraudulent persons should be curtailed, and the pri-
vilege of sanctuary should be granted only to those at risk of injury to life and limb: Norman
Maclare Trenholme, The Right of Sanctuary in England: AStudy in Constitutional History (Univ
of Missicon, 1903), p. 26, referring to 3 Parl. Roll, 2 Rich. II., m. 51 a: That neither in case of
debt, account or single trespass was sanctuary demandable unless it involved injury to life and
limb.
and Warsaw, for example, it imperfectly recognized the chronic as well as
acute and violent nature of oppression in Russia. A dramatic stroke of
misfortune will entitle a man to enter, but slow torture does not
count.
60
It was then proposed to add punishment on religious grounds,
but the Liberals, led by reformist Sir Charles Dilke, thought that too
weak.
61
He proposed a clause that would provide for the admission of
an alien solely to avoid prosecution or punishment on religious grounds,
or for an offence of a political nature, or to avoid danger to life and limb on
account of his religious beliefs or to avoid persecution involving danger of
imprisonment or of detention in or expulsion from his home on account of
his religion.
62
Ultimately, it was Dilkes wording that was included.
Aliens were not to be excluded if eeing persecution, involving danger
of imprisonment or danger to life and limb, on account of religious belief.
If this were proven (by the immigrant), permission to land could not be
refused.
63
The Jewish Chronicle favorably reported Dilkes interventions and the
governments agreement: There is something in this amendment beyond
the safety of the Jewish refugee. It enshrines a lofty principle and a great
tradition. The reafrmation of this principle by the British legislature in
the face of the world would constitute a new triumph for religious free-
dom.
64
They were right. None of the jurisdictions with comparable immi-
gration restriction statutes incorporated such an exemption for those eeing
political and religious persecution. Of course, principle had not always
been matched by practice, as the Anglo-Jewish community knew better
than most. Prime Minister Balfour tried from time to time to puncture
the nationalist talk, offering his own reality check on overblown British
self-congratulation. He thought the honorable members of the House of
Commons might put aside this fancy picture that from time immemorial
this country had been so much in favour of religious equality and the rights
of conscience that it gave an asylum to the religiously persecuted of all
nations.
65
But the idea of Britain as place of refuge from tyranny was
60. Notes of the Week: the Right of Asylum, The Jewish Chronicle, July 14, 1905, 56.
61. Gainer, The Alien Invasion, 193.
62. According to The Jewish Chronicle, this was drafted by the president of the Board of
Deputies, Mr. Alexander, in consultation with Mr. N.L. Cohen. The Government and
Religious Refugees, The Jewish Chronicle, July 21, 1905, 7.
63. Aliens Act 1905, s 3.
64. The Aliens BillFugitives from Religious Persecution, The Jewish Chronicle, May
26, 1905, 7.
65. M.J. Landa, The Alien Problem and Its Remedy (London: P.S. King and Son, 1911),
26364, referring to Arthur Balfour, Hansard, Parliamentary Debates, House of Commons,
July 10, 1905, 5th series, vol. 149, col. 157.
so powerful that he could not sustain such a position publicly without risk-
ing political ground. He had to backtrack from such cynicism, and afrmed
that although his government was introducing an immigration restriction
statute to exclude destitute aliens, he fully recognized the need for asylum
from religious as well as political persecution. We have heard a great deal
of the possibility of Jews and others . . . coming to this country in an absol-
utely destitute condition, and being rejected, under this Bill, from our
shores, although they were ying from religious or political persecution.
Nobody desires that such a contingency should occur.
66
Even the proponents of immigration restriction, then, had to concede the
power of asylum for British, or perhaps more specically English,
self-denition.
67
To some considerable extent, however, Balfour was dissembling and
simply pandering to a British chauvinism. The asylum clause was not
necessarily the progressive humanitarian measure it might seem. Its
double-edged effect was evident in one of Balfours justications of it. It
is important to recognize that it was almost impossible for him to introduce
and successfully defend an Aliens Bill without some recognition of, and
expression of loyalty to, the British tradition of asylum. This already
tells us a lot. We have been accused on this side of the House of having
unduly desired to restrict that hospitality which has for generations been
extended by us to all and sundry who desire to come to our shores, what-
ever be their race, whatever be their religion, whatever be their politics, and
whatever be their social status. For my own part, I altogether repudiate that
view.
68
But that was just the preface to his real message. Balfour struck at
what was for him core business: the clause functioned to ensure asylum for
those who deserved it, and to lter out the undeserving: the undesirables.
It must be remembered that hospitality, although a virtue, is not obligatory
either upon individuals or upon nations; and if you want it to be practised,
either by an individual or by a nation, it is really in the highest degree
desirable that it should not be abused.
69
This begins to sound more like the arguments of the late twentieth and
early twenty-rst centuries, and was in practice the work of the port
66. Landa, The Alien Problem, 264, referring to Hansard, Parliamentary Debates, House
of Commons, July 19, 1905, 5th series, vol. 149, col. 1284.
67. In defending the nal bill, the Conservative Home Secretary, Aretas Akers-Douglas,
reassured the House of Commons that it had never been the desire of the government to
exclude refugees. Akers-Douglas, Hansard, Parliamentary Debates, House of Commons,
July 19, 1905, 5th series, vol. 149, col. 125759.
69. Ibid.
immigration ofcers and the immigration boards that heard appeals against
decisions denying entry. Balfour reected the position in international law:
no state could be compelled to admit a foreigner to its territory, although if
it chose to grant asylum, then it could not be compelled to surrender that
person.
70
As such, Balfours statement was perhaps designed to highlight
just how generous Britain was in including a provision of this kind: one
that must therefore be shielded from abuse. Despite his disinclination to
include an asylum clause, Balfour was so bold as to frame the bill in its
nal reading as a measure that would ensure that the great British tradition
of hospitality would remain protected against those who would abuse it. In
his view, it would keep out those who ought to be kept out, and make wel-
come those who should be admitted, thus not just honoring but safeguard-
ing what he, too, considered part of Britains precious heritage.
71
There was much to what Balfour said, for better or worse, as the clause
was, in one view, a reversal of prior British practice on asylum.
72
The
Home Ofce Permanent Under-Secretary himself argued that it involve[d]
the reversal of our policy for the last two hundred years as to the right of
asylum and the law of extradition.
73
He was also deeply worried about
how this provision could possibly be implemented with no pre-existing
administrative structure.
74
It put the onus of proof on the asylum seeker,
whereas before no proof had been required.
75
In this view, far from intro-
ducing an expectation of asylum, the Act functioned to restrict the free
entry of those seeking refuge, which had been the traditional position in
Britain (when borders were not controlled). Previously, those in need of
protection could enter the territory and remain without having to justify
their presence.
76
Thus, the citing of particular grounds for asylum rep-
resented a narrowing of this more generous practice.
70. See the views expressed by the United Kingdom delegate, Mrs. Corbet, at the UNGA,
Third session, Third Committee, 121st meeting, November 3, 1948, UN Doc. SR.121, 330.
72. Gainer, The Alien Invasion, 193; and Marrus, The Unwanted, 3738.
73. Mackenzie Chalmers, Minute, September 30, 1903, cited in Jill Pellew, The Home
Ofce and the Aliens Act, 1905, The Historical Journal 32 (1989): 372.
74. The challenge is documented in Pellew, The Home Ofce and the Aliens Act, 1905,
36985.
75. Such an onus proved to be a burden, indeed an impossibility, for many seeking refuge.
What is Wanted, The Jewish Chronicle, February 23, 1906, 9.
76. There were some short-lived exceptions, discussed in Porter, The Refugee Question, 3:
e.g., Aliens Act 1793 (33 Geo. 3 c. 4), which continued in some guise until 1826; An Act to
Authorise for One Year, and to the End of the Then Next Session of Parliament, the
Removal of Aliens from the Realm 1848 (11 & 12 Vict. c. 20) (although not implemented
against anyone). Porter, The Refugee Question, 218.
This is an interpretation that sits comfortably with the restrictive nature
of the Act so well traversed in other accounts of the legislation. When
scholars have noted the asylum clause, it typically has been assessed as
a retrograde move away from a broad freedom of entry, and an
anti-Semitic one at that.
77
For these reasons, some commentators at the
time and several historians since have been disinclined to grant the
clause the signicance that it would seem to warrant. However, many
early twentieth century commentators thought otherwise. Some considered
that the Act gave far greater certainty to people at risk of persecution.
The Jewish journalist J.M. Landa, for example, described the asylum
clause as a precious safeguard which consecrates by legislation a noble
tradition, while objecting to the Act as a whole.
78
This is precisely
what worried some anti-immigrationists about the law at the time; in
dening those to be selected out and refused permission to land, by the
same stroke it selected everyone else in. Has any alien, not undesirable
in the sense of the Act, asked one worried author in The Juridical
Review, now a right of entry to our jurisdiction?
79
Some legal scholars
went so far as to say that the Aliens Act conferred an individual right of
asylum that was not just new to British law, but was, to their knowledge,
unique.
80
Domesticating International Law
As soon as the Aliens Act was passed, N.W. Sibley and Alfred Elias, two
British barristers with specialist interest in international law, joined forces
to assess its signicance.
81
It was not the exclusion of would-be immi-
grants on which they focused, but rather this newly codied right of asy-
lum. They deemed the Act the most comprehensive declaration of the
right of asylum that is to be found in the whole range of municipal legis-
lation, not merely in the history of this country, but throughout the civilized
world. They located the antecedents of the Acts asylum provision in
77. Marrus, The Unwanted; See also Elina Multanen, British Policy Towards Russian
Refugees in the Aftermath of the Bolshevik Revolution, Revolutionary Russia 12 (1999):
4468.
78. Landa, The Alien Problem and Its Remedy, 263.
79. R.L., Review of H.S.Q. Henriques, The Law of Aliens and Naturalization (London:
Butterworth, 1906), The Juridical Review (19067): 212.
80. Sibley and Elias, The Aliens Act and the Right of Asylum.
81. Sibley was barrister-at-law of Lincolns Inn. Elias was barrister-at-law of Grays Inn.
Sibley had previously co-authored with Frederick Edwin Smith Birkenhead, International
Law as Interpreted During the Russo-Japanese War (Boston: Boston Book, 1905).
international law, but regarded its statutory expression as declar[ing] the
Right of Asylum even more fully than International Law.
82
Tracing the principle of asylum through the classical international legal
scholarship of Vitoria, Pufendorf, Vattel, and Grotius, Sibley and Elias
examined its nature. They said that the right to asylum
cannot be put on the footing of an absolute or unconditional right. Vattel
introduces two limitations of the right, one arising from the necessities of
the State whose shelter is sought, the other from the character of those
claiming the right of asylum. Persons who violate all public security, and
declare themselves the enemies of the human race, not merely cannot
claim the right, but must be punished wherever they are seized, though
that should be out of the territory of the State against whose laws they
have offended.
83
Just such limits were in operation with respect to the Aliens Act; namely,
with respect to the anarchist menace that was a secondary rationale for
introducing Aliens Bills in the late 1890s. Anarchy was not considered
to be a political offence, and it had been ruled that anarchists could not
benet from protection.
84
They were, in essence, Vattels enemies of
the human race. Indeed, the UDHR and modern international law
reect this position, containing an exception to asylum for prosecutions
genuinely arising from non-political crimes or from acts contrary to the
purposes and principles of the United Nations.
85
Grotius, writing more than a century before Vattel, had expressed a more
liberal view that banished persons could seek a new home in other nations,
and could assert their right to do so by force if necessary.
86
He described
asylum as being for the benet of those who suffer from undeserved
enmity, not those who have done something that is injurious to human
82. Sibley and Elias, The Aliens Act and the Right of Asylum, 130. See also Egidio Reale,
Le droit dasile, Hague Recueil des Cours 63 (1938-I): 47172.
83. Sibley and Elias, The Aliens Act and the Right of Asylum, 11. Sibley and Elias noted
that this should not be carried so far as to refuse a retreat to the unfortunate, for slight
reasons, and on groundless and frivolous fears.
84. In popular terms, it was the anarchist menace, as well as the Jewish alien invasion,
that saw the bills introduced and the Act eventually passed. Gainer, The Alien Invasion, 175,
180; and Eugne Ppin, LAliens Act de 1905, Causes et Rsultats (Librairie Nouvelle de
Droit et de Jurisprudence, Paris, 1913), 253, referring to the Meunier case (1894) 2 QB
415, 419; see also Paul Knepper, The Other Invisible Hand: Jews and Anarchists in
London before the First World War, Jewish History 22 (2008): 295315.
85. UDHR, art. 14(2).
86. De Jure Belli ac Pacis, II.2.13, cited in Sibley and Elias, The Aliens Act and the Right
of Asylum, 3.
society or to other men.
87
He also wrote that [a] permanent residence
ought not to be denied to foreigners who, expelled from their homes, are
seeking a refuge, provided that they submit themselves to the established
government and observe any regulations which are necessary to avoid
strifes, and provided they had not committed offences affecting public
order or crimes against another sovereign.
88
Pufendorfs later analysis,
however, found that it was a matter of state discretion whether aliens
were to be admitted. He recognized an exception for those driven by
necessity or by any cause that deserves pity or compassion.
89
But that dis-
cretion, he thought, could justiably be an expedient one. A state might
offer refuge to a small number of men expelled from their home, not
for their demerits or crime, particularly if they were industrious or
wealthy, and will disturb neither our religious faith nor our institutions.
90
Sibley and Elias also analyzed the Aliens Act in the context of British
law on immigration and asylum. Britain had made previous attempts at
immigration law in the context of political insecurity and war, but none
had explicitly nominated the categories of persons to be excluded, or
included. The Aliens Act 1793 had established regulations respecting
aliens arriving in this kingdom, or resident therein, in certain cases.
91
That statute was crafted in a context of the inux of migrs from the
French Revolution.
92
Its purpose was selectively to permit entry, and the
Crown was empowered to regulate the landing, residence, and expulsion
of aliens. A register was to be compiled with the names, rank, occupation,
or description and place of residence of all aliens arriving in Britain.
93
But as early twentieth century commentators noted, this legislation was
87. De Jure Belli ac Pacis, II.21.5 cited in Price, Rethinking Asylum, 36. Van den
Wijngaert argues that this went beyond political offences to incorporate a more modern
notion of humanitarian asylum: Christine Van den Wijngaert, The Political Offence
Exception to Extradition: The Delicate Problem of Balancing the Rights of the Individual
and the International Public Order (Kluwer: Deventer, 1980), 7.
88. Hugo Grotius, De Jure Belli ac Pacis, II, para xvi, cited in Stevens, UK Asylum Law
and Policy, 12.
89. Sibley and Elias, The Aliens Act and the Right of Asylum, 6, referring to Pufendorf, Of
the Law of Nature and Nations, III.iii.
90. Pufendorf, Of the Law of Nature and Nations, III.3.9. See also Oppenheim, who wrote
in 1905 that it might be deemed necessary to place that foreigner under surveillance or other
restrictive measures, as the state had an obligation to prevent individuals from endangering
the safety of another state: L. Oppenheim, International Law: A Treatise, vol. 1 (London:
Longmans, Green, and Co., 1905), para. 316.
91. Aliens Act 1793 (33 Geo. 3 c. 4).
92. Stevens, UK Asylum Law and Policy, 1819; May, Constitutional History of England,
15758.
93. H.S.Q. Henriques, The Law of Aliens and Naturalization including the Text of the
Aliens Act, 1905 (London: Butterworth and Co., 1906), 1112.
justied only by the extraordinary exigency of the times, and was
wholly inconsistent with the free and liberal spirit entertained up until
that time of revolution and war.
94
Asylum seekers and refugees were not
mentioned, as it was presumed by convention that they could and would
enter. But a broad discretion in section VII empowered the King by procla-
mation or order in council to refuse permission to land to Aliens of
any Description if this were considered necessary for the Safety or
Tranquillity of the Kingdom.
95
Five years later, in 1798, an Act for Establishing Regulations Respecting
Aliens was adopted. It instituted a requirement that aliens register and
obtain a license to reside in Britain. This stemmed from concerns that
the institution of asylum might be abused by Persons coming to this
Kingdom for Purposes dangerous to the Interests and Safety thereof.
96
Although the Act has been described as a signicant advance in recognis-
ing the importance of the principle of asylum,
97
the principle itself was
not binding. Appearing in the preamble, it simply framed the statutes
object and purpose. With peace after the Napoleonic Wars, the 1793 and
1798 Acts were repealed and replaced by the 1836 Act for the
Registration of Aliens: a statute that quickly fell into abeyance.
Prior to the 1905 Aliens Act, then, British practice had been consistent
with the international law position that asylum was the privilege of the state
to bestow, rather than a right of the individual to claim. The rst edition of
Oppenheims classic treatise on international law, published in 1905
shortly before the Acts passage, summarized that position:
States have always upheld their competence to grant asylum if they choose to
do so. Now the so-called right of asylum is certainly not a right of the
foreigner to demand that the State into whose territory he has entered with
the intention of escaping prosecution from some other State should grant pro-
tection and asylum. For such State need not grant them. The so-called right of
asylum is nothing but the competence mentioned above of every State, and
inferred from its territorial supremacy, to allow a prosecuted foreigner to
enter and to remain on its territory under its protection, and to grant thereby
an asylum to him.
98
94. May, Constitutional History of England, 284. Porter similarly emphasized the statutes
exceptionality, noting that in normal times it was not thought proper that governments
should have any powers at all to exclude or expel aliens. See Porter, The Refugee
Question, 3.
95. Cited in Stevens, UK Asylum Law and Policy, 20.
96. 1798 Act, Preamble.
97. Stevens, UK Asylum Law and Policy, 22.
98. Oppenheim, International Law, para. 316. Oppenheim explained that it was on this
basis that United States and British legislation (namely, the 1882 Act and the then Aliens
The great signicance of the Aliens Act, then, for commentators such as
Sibley and Elias, was its inclusion of an individuals right to asylum.
They were not alone in noting this. Eugne Ppin, who was to become a
leading international law scholar, observed signicant differences between
the British and continental approaches in his book LAliens Act de 1905:
Causes et Rsultats.
99
In Ppins view, the British approach to granting
asylum stemmed from a historically based Protestant nationalism: le
droit dasile est une rgle traditionnelle dAngleterre; on le trouve toutes
les poques de son histoire.
100
By contrast, on the continent, the predomi-
nant approach was that individuals had no right to be granted asylum, but
rather the state had a right to confer if it so wished.
United States legal scholars also noted the Acts innovations in codify-
ing, but also modifying, elements of international law. The clauses exclud-
ing the diseased, the insane, and the destitute were all familiar to them,
modeled as they were on United States law, and standard as they had
become across multiple jurisdictions.
101
The right of asylum, however,
excited particular interest. In the Digest of International Law, Columbia
professor John Bassett Moore, later a judge of the Permanent Court of
International Justice, commented that: No legal term in common use is
perhaps so lacking in uniformity and accuracy of denition as the right
of asylum.
102
The British Aliens Act now provided one denition, he
noted. James Brown Scott, editor of the American Journal of
International Law, concurred that the right of asylum thus dened was
Bill, respectively) could exclude particular persons from entering the territory: para. 314. In
1900 the German Reichsgericht stated that [t]he accordance or refusal of asylum is a right
of the state to which the fugitive has ed. The fugitive has no claim to it: Entscheidungen
des Reichsgerichts in Strafsachen 33 (1900): 99, cited in Morgenstern, The Right of
Asylum, 327.
99. Ppin, LAliens Act de 1905, 196. This book was based on his doctorate from the
University of Paris. At 119 he cites Renault, Des crimes politiques en matire dextradition
(1880) JDIP, 57, n. 4: Il ny a pas pour les rfugis de droit lasile, en ce sens quils pour-
ront simposer au pays, dans lequel ils sont venus stablir; ce serait contraire toutes les
notions de la souverainet. Dans lasile donn aux proscrits, il y a, pour le pays de refuge,
lexercice dun droit et surtout dun devoir, mais dun devoir moral. Il ne faut pas oublier
non plus que ce pays a aussi des obligations internationales et que celles-ci ne doivent
pas tre mconnues par suite de lasile.
100. Ppin, LAliens Act de 1905, 196.
101. HO Memo, Mr. Matthews to Mr. Ritchie, December 15, 1887, TNA HO 45/10062/
B2386; Alien Immigration, March 24, 1903. Folder containing United States statutes and
commentary, TNA HO 45/10062/B238.
102. John Bassett Moore, A Digest of International Law, vol. II (Washington, DC:
Government Printing Ofce, 1906), para. 291.
novel, adding that it was as wise as it is humane.
103
The equivalent
United States statutethe 1882 Act to Regulate Immigrationwas an
attempt to restrict the entry of paupers, contract laborers, and criminals.
It was deemed by another United States commentator to be rigid and
inelastic, requiring relaxation as a concession to humanity.
104
Comparing the British and United States legislation, Scott endorsed the
humane provisions of the English act exemption from exclusion on the
ground of want of means persons ying from persecution on religious or
political grounds in certain cases.
105
Sibley and Elias also drew comparisons between the United States and
British immigration statutes. They considered that despite their otherwise
implicitly identical scope and purpose, aimed not at the alien, but at the
undesirable alien immigrant,
106
there was one major difference. Whereas
section 4 of the United States legislation essentially codied the political
offence exception in extradition law,
107
section 1(3) of the Aliens Act
articulated a broader right to asylum that applied not just to criminals, but
to any person seeking protection from persecution. Sibley and Elias under-
stood both provisions as conferring a right of asylum, but noted that:
There is a marked difference between the classes of persons who can claim
the right in the two cases. The Act of Congress merely confers the benet of
the Right of Asylum to foreign convicts who have been convicted of
political offences. This involves a far more restricted construction of the
Right of Asylum than that found in the Aliens Act, by which the Right of
Asylum is conferred on persons seeking admission into this country either
to avoid prosecution or punishment for a political offence or on religious
grounds. And further, the Right of Asylum is conferred by the Act of
Parliament on persons seeking admission into this country in order to
avoid religious persecution. The Act of Congress is entirely silent on this
last head.
108
Sibley and Elias struck here at the heart of what was to emerge as the bifur-
cation of asylum.
103. James Brown Scott, Review of The Aliens Act, The American Journal of
International Law 1 (1907): 261.
104. Charles Noble Gregory, Review of Sibley and Elias, The Aliens Act, The American
Political Science Review 2 (1907): 82.
105. Scott, Review of The Aliens Act, 261.
106. Sibley and Elias, The Aliens Act and the Right of Asylum, 23.
107. All foreign convicts except those convicted of political offenses, upon arrival, shall
be sent back to the nations to which they belong and from whence they came. An Act to
Regulate Immigration 1882, Session I, Ch. 376, s. (4).
108. Sibley and Elias, The Aliens Act and the Right of Asylum, 2526.
The Bifurcation of Asylum: Extradition Law and Refugee Law
Protection from surrender for political offenses (the political offense
exception) was already an established part of extradition law. By contrast,
protection from removal to persecution grew out of the political offense
exception but developed as refugee law, and over time came to be housed
domestically within immigration statutes. This bifurcation was the Acts
rst point of novelty (after the inclusion of the asylum clause itself), and
as such needs further explanation.
The ancient tradition of asylum derived from the practice of providing
shelter to fugitives who reached a privileged place, safe from invasion
and pursuit. By virtue of its long history, hospitality and protection
came to be regarded as the fugitives privilege, and with the formation
of nation states, states themselves became refuges for offenders against
the laws of other nations. Thus, asylum historically was understood as
fugitives right to protection from pursuit by the entity from which they
had ed. This understanding of full hospitality eventually abated, however,
as states started to assert their right to extradite offenders within their
jurisdiction.
However, as states sought to remove criminals from their territories,
another exception developed: persons wanted for purely political offenses
would not be expelled. The political offense exception to surrender in
extradition law became synonymous with asylum,
109
and those protected
from removal were commonly described as political refugees.
110
By
1905, this was a well-established concept and practice, but one that was
109. Of course, in the absence of an extradition treaty with the requesting state, there is no
legal duty to surrender a fugitive at all. Grotius believed that there was such a duty, but state
practice has not followed this view: Morgenstern, The Right of Asylum, 32728.
Morgenstern writes: The necessity for extradition treaties is a recognition of the competence
to grant asylum. Ibid., 328. On extradition law generally, see Moore, Digest of
International Law, vol 1. para. 5. The Belgian Loi sur les extraditions, No. 1195 of
October 1, 1833, was the rst statute to codify the exception, and it came to serve as an
exemplar for extradition legislation in most states. Atle Grahl-Madsen, The Land Beyond:
Collected Essays on Refugee Law and Policy (The Hague and Boston: Martinus Nijhoff,
2001), 37. See also Van den Wijngaert, Political Offence Exception, 15; and Ivan A.
Shearer, Extradition in International Law (Manchester: Manchester University Press,
1971), 167. See also the various resolutions of the Institute of International Law; for
example, Oxford (1880), Lausanne (1888), Geneva (1892), and Paris (1894), in James
Brown Scott, Resolutions of the Institute of International Law dealing with the Law of
Nations (New York: Oxford University Press, 1916).
110. See for example, Morgenstern, The Right of Asylum, 329; Extradition Act 1870,
footnote to s. 3; R v Governor of Brixton Prison, ex parte Sarno (1916) 2 KB 742, 748.
distinct from the humanitarian concept of asylum as protection from
(religious) persecution.
111
That asylum was generally synonymous with a refusal to surrender pol-
itical offenders is not surprising, given the late emergence of domestic laws
regulating the admission of foreigners. As Price has explained, [i]n a
world of open borders, asylum was needed only by those facing extradi-
tion; other persecuted people were admitted as migrants.
112
Given the
relatively free movement of persons across Europe until the outbreak of
World War I,
113
consideration of protection needs at the point of entry
rarely arose.
114
In juridical terms, then, the need for asylum was only rel-
evant if another state requested an individuals return.
But as states began to assert greater control over their borders and to
refuse admission to undesirables, assessing whether a person was in
need of asylum became relevant at the point of entry as well. Thus, as
immigration laws were codied, the notion of asylum began to encompass
other persecuted people as well, expanding from an element of inter-
national criminal law (a defense to extradition) to a subset of immigration
policy (a defense to deportation).
115
The novelty of the 1882 Immigration
111. It also exists in another formdiplomatic asylumwhich describes the practice of
some states, most notably those in Latin America, of providing temporary refuge in diplo-
matic missions to persons at imminent risk of harm. This practice is not accepted as forming
part of international law.
112. Price, Rethinking Asylum, 25. Nancy L. Green focuses on emigration and exit, rever-
sing the paradigm of histories of immigration. While the right to depart is part of the
story, the question of extradition and asylum also needs integration into histories of border
regulation. See Nancy L. Green, The Politics of Exit: Reversing the Immigration
Paradigm, Journal of Modern History 77 (2005): 26389.
113. Jagerskiold argues that movement was relatively liberal in practice: A.F. Jagerskiold,
Historical Aspects of the Right to Leave and to Return, in The Right to Leave and to
Return: Papers and Recommendations of the International Colloquium held in Uppsala,
Sweden, 1920 June 1972, ed. Karel Vasak and Sidney Liskofsky (N.p.: The American
Jewish Committee, 1976) 6; and McAdam, An Intellectual History of Freedom of
Movement in International Law, 4041.
114. Although the British Registration of Aliens Act 1836 made provisions for foreigners
to produce identication upon arrival, and required that the masters of all incoming vessels
provide Customs with a list of all aliens aboard, there was no power to exclude or deport, or
to record the subsequent movement of aliens upon arrival. Furthermore, by the 1880s, the
Act and its processes were virtually unused, such that when immigration became a political
issue in that decade, few members of Parliament were even aware of the existence of the
1836 Act. See also Pellew, The Home Ofce and the Aliens Act, 1905, 370.
115. Price, Rethinking Asylum, 25. See Ivan A. Shearer, Extradition in International Law
(Manchester: Manchester University Press, 1971), 85. Goodwin-Gill noted that [p]olitical
offence is one small part of the wider topic of asylum: International Law and the
Movement of Persons, 142. Van den Wijngaert, Political Offence Exception, 18, has stated
that the notion of persecution on political grounds is broader than the political offense
Act in the United States was to include a political offense exception in
immigration law for the rst time, as an exception to exclusion from
entry. Yet signicantly, the British 1905 Aliens Act broadened this protec-
tion even further. Not only did it provide for admission for those at risk of
political prosecution (whose removal was already precluded by the
Extradition Act 1870), but it also encompassed those at risk of persecution
for religious reasons.
116
As such, it was a turning point in the evolution of
refugee law. It essentially introduced a refugee category into domestic
immigration law, which was distinct from the traditional extradition law
political offense exception.
117
Whereas this was to become standard prac-
tice in the second half of the twentieth century, it was highly unusual for
this period.
118
The Aliens Acts second point of novelty is related closely to the rst: its
inclusion of persecution as a basis for admission. It was another forty
years before that term would appear in an international refugee instrument
(the constitution of the International Refugee Organization (IRO)).
Moreoverand the third point of noveltythe Act marked the start of a
nominated approach to identifying protection needs (here on the basis of
political opinion and religion), foreshadowing later developments in inter-
national refugee law.
119
Commentators at the time described the Acts
inclusion of religious persecution as unique,
120
and to our knowledge, it
exception in extradition law. The latter applies to those who have actively committed a
crime; the former encompasses passive victims of political persecution.
116. Van den Wyngaert describes this as humanitarian asylum, as opposed to political
asylum, Political Offence Exception, 71. She refers to M. Cherif Bassiouni, International
Extradition and World Public Order (Leyden: AW Sijthoff, 1974), 107. The Aliens Act
thus expanded to apply to deportation and similar measures . . . a similar protection in
relation to political offences as is provided in extradition: see Ivan A. Shearer, Extradition
in International Law (Manchester: Manchester University Press, 1971), 85.
117. Secretary of State Herbert Gladstone described a person claiming asylum under the
Act as a political or religious refugee: Memorandum to the Members of Immigration
Boards, March 9, 1906, TNA HO 45/10326/131787/9.
118. An 1887 inquiry by Lord Salisburys government, for example, elicited the truly
extraordinary circumstance that none of the immigration laws of the different European
States contain[ed] the slightest allusion to the subject of the right of asylum: Sibley and
Elias, The Aliens Act and the Right of Asylum, 13031.
119. See Resolution Adopted by the Intergovernmental Meeting at Evian, July 14, 1938,
para. 8, in Proceedings of the Intergovernmental Committee (Evian, July 615, 1938),
Verbatim Record of the Plenary Meetings of the Committee: Resolutions and Reports,
Annex IV.
120. See Sibley and Elias, The Aliens Act and the Right of Asylum, 13031; Ppin,
LAliens Act de 1905, 249: jamais lasile navait t reconnu par une loi aux rfugis reli-
gieux, cest--dire aux personnes fuyant des poursuites ou des peines motives par des
croyances religieuses, ou des prsecutions contre ces croyances.
was the rst English-language statute to list persecution on religious
grounds as a basis for admission. At least since the Edict of Potsdam in
1685,
121
no other domestic law had contained a similar provision.
122
Interestingly, the United States Immigration Act of 1917, enacted just
over a decade after the 1905 Aliens Act, also referred to religious
persecution. That Act regulated the immigration of aliens into the
United States by listing categories of aliens excluded from admission
(just as the British statute did). Illiterates were one such excluded
group. To determine whether or not someone was illiterate, all persons
over the age of sixteen who were physically capable of reading were
required to undergo a literacy test (in a language selected by the prospec-
tive immigrant). However, the Act exempted from the literacy test persons
able to prove that they were seeking entry to avoid religious persecution in
the country of their last permanent residence, whether such persecution be
evidenced by overt acts or by laws or governmental regulations that dis-
criminate against the alien or the race to which he belongs because of
his religious faith. It also exempted persons convicted, or who admit
the commission, or who teach or advocate the commission, of an offense
purely political.
123
In the sidebar annotations to the Act, these groups
were described respectively as religious refugees and political
offenders.
Although the 1917 Act historically has been analyzed in terms of its
restrictive approach to immigration, like the 1905 Act, it similarly con-
tained an asylum carve-out. This was all the more remarkable given that
the United States never pursued an open door policy to immigration, in
contrast to Britain prior to 1905. Like the British statute, the later United
States Act reected the bifurcation of asylum into its refugee law and extra-
dition law components.
121. For an overview, see Stevens, UK Asylum Law and Policy, 614. Article 120 of the
French Jacobean Constitution of 1793 declared that the French people donne asile aux
trangers bannis de leurs pays pour la cause de la libert. Il le refuse aux tyrans! but the
conception here is of political freedom ghters, not people persecuted for their religious
beliefs. See Van den Wijngaert, Political Offence Exception, 9.
122. Switzerland was said to offer a similar right of asylum as England, although only les
rfugis politiques were mentioned in Professor Martens account of this: Sibley and Elias,
131, referring to F. de Martens, Trait du Droit International (Paris: Librairie Marescq Aine,
1883), 1: 449. The only other related example is that of the United Statess 1917
Immigration Act, discussed below. There was no reference to religious persecution in the
national constitutions surveyed during the drafting of the asylum provision in the UDHR:
see UN Doc. E/CN.4/AC.1/3/Add.1 (June 11, 1947), 27984.
123. An Act to Regulate the Immigration of Aliens to, and the residence of Aliens in the
United States 1917, Ch. 29, s. 3.
A Retreat from Asylum
Britains generous approach to asylum was short-lived, however.
124
Its
codied individual right to asylum functioned formally from 1906 to
1914. Britain then beat a hasty retreat, albeit initially in the extraordinary cir-
cumstances of war. The asylum clause was removed from the 1914 and 1919
aliens statutes,
125
which reverted to the political security tradition of alien
laws, reminiscent of the 1793 Act, focusing on the exclusion of enemy
aliens from British territory and their treatment within British territory.
126
Although the 1914 Act did not explicitly protect refugees, some scholars
have argued that protection continued to be granted throughout the war to
Armenian refugees from Ottoman persecution and, after invasion, to numer-
ous Belgian refugees.
127
In R v Secretary of State for Home Affairs, ex parte
Chateau-Thierry, it was stated that the Attorney-General had claimed he had
no intention of enforcing the provisions of the Act of 1914 against such
refugees.
128
The court noted the marked contrast between the language
of the 1905 Act and that of the 1914 Act, acknowledging the latters wide
discretionary powers and absence of safeguards of the former Act.
129
The retreat from the high point of the 1905 Aliens Act became increas-
ingly apparent after World War I. In 1925, the Home Secretary, Sir
William Joynson Hicks, denied that political fugitives were refused admis-
sion to Britain, although he did admit that political refugees were excluded
if they were undesirable in other respects.
130
In 1929, the Home
124. The United States approach to asylum was similarly short-lived, as the Immigration
Act of 1924 dispensed with such a provision: see David W. Engstrom, Presidential Decision
Making Adrift: The Carter Administration and the Mariel Boatlift (Rowman and Littleeld
Publishers, Lanham, 1997), 9, n. 4.
125. The Aliens Restriction Act 1914 was passed on August 5, 1914, in one day. There
was no opposition to removing the right of asylum, although the Attorney General stated that
the Act would not be enforced against political refugees. See Morgenstern, The Right of
Asylum, 339, 346; and Aliens Restriction (Amendment) Act 1919 (9 & 10 Geo. 5 c. 92).
126. Cohen states: Indeed such a formal status was only to reappear in British domestic
law as late as 1970 under the Rules made under the Commonwealth Immigrants Acts 1962
and 1968: Steve Cohen, No One is Illegal: Asylum and Immigration Control Past and
Present (Stoke on Trent: Trentham Books, 2003), 114 (fn. omitted). However, even though
refugee status became part of the Act, it was not couched in the terms of a right to asylum.
127. David Bonner, Executive Measures, Terrorism and National Security: Have the
Rules of the Game Changed? (Aldershot: Ashgate, 2007), 108, citing Holmes, John
Bulls Island, 8788.
128. R v Secretary of State for Home Affairs, ex parte Chateau-Thierry (1917) 1 KB 923,
932 (Pickford LJ).
129. Ibid, 930 (Swinfen Eady LJ).
130. William Joynson Hicks, Hansard, Parliamentary Debates, House of Commons, 5th
series, vol. 110, col. 310, cited in Morgenstern, The Right of Asylum, 341.
Secretary, John Clynes, remarked in relation to the exclusion of Leon
Trotsky that: No alien has the right to claim admission to this country if
it would be contrary to the interests of the country to receive him.
131
This
recalled Vattels enemies and the exclusion of late-nineteenth century
anarchists from protection. Perhaps most signicantly, of the eight parties
to the 1933 Refugee Convention, the United Kingdom was the only one to
reject article 3(2) (the rst non-refoulement provision), which provided
that each contracting party undertakes in any case not to refuse entry to refu-
gees at the frontiers of their countries of origin.
132
The United Kingdomdel-
egate subsequently told the Intergovernmental Advisory Committee on
Refugees that: His Majestys Government must reserve the right to refuse
admission to the United Kingdom to any alien, whether or not he comes
within the category of stateless refugees.
133
In international circles, then, successive British governments were with-
drawing from the principle that any individual had a right to claim and be
granted asylum. This retreat was to continue. And yet the narrative about
the development of the refugee denition in international law is customa-
rily traced to the rst international refugee instruments developed by the
League of Nations and subsequent organizations. The interwar years are
often pinpointed as the decades in which refugee law made great strides.
The periodization offered by one leading refugee law scholar, James
Hathaway, has been particularly inuential in this respect. Although
acknowledging the long history of asylum in state practice, and in fact lim-
iting his study to the evolution of refugee status in international law:
19201950, his typology for analyzing this period has reinforced the idea
that persecution did not emerge as a dening feature of the refugee until
1938.
134
He described the founding resolution of the Intergovernmental
131. John Clynes, Hansard, Parliamentary Debates, House of Commons, July 18, 1929,
5th series, vol. 230, col. 603, cited in Morgenstern, The Right of Asylum, 342.
132. Convention Relating to the International Status of Refugees, October 28,
1933, League of Nations Treaty Series, vol. CLIX, no. 3663; see discussion in Robert J.
Beck, Britain and the 1933 Refugee Convention: National or State Sovereignty?
International Journal of Refugee Law 11 (1999): 62122.
133. Cited in Morgenstern, The Right of Asylum, 342, referring to the Ofcial Journal
of the League of Nations (1934), 373. See, further, Robert J Beck, Britain and the 1933
Refugee Convention: National or State Sovereignty? International Journal of Refugee
Law 11 (1999): 615: From the Home Ofces standpoint, refugees were merely another
group of foreigners seeking entrance into British territory, and Britain possessed the sover-
eign authority to limit legitimately their entry.
134. Hathaway, The Law of Refugee Status, 99. The rst time persecution was included
as a formal criterion of an international law refugee denition was in the 1946 IRO
Constitution. Hathaway characterizes refugee law as spanning three periods: the juridical
(192035, when refugees were dened by their lack of formal diplomatic protection); the
Committee on Refugees in 1938 as innovative because of its focus on
personalized grounds for refugee statuspolitical opinions, religious
beliefs or racial originrather than on a general absence of protection
(as in the earlier League instruments).
135
He explained that [t]he essence
of refugee status came to be discord between the individual refugee appli-
cants personal characteristics and convictions and the tenets of the politi-
cal system in her country of origin.
136
Elsewhere, he stated that [t]he
move to a more individuated conception of refugeehood signalled the
shift from a refugee law based on general humanitarian concern to provide
en bloc protection, to a more selective focus on assisting persons whose
basic human rights were jeopardized.
137
This is the case if the conception
of refugee is considered to be produced solely in and by international law.
However, the need to incorporate domestic law into this history is
suggested by the 1905 Aliens Act, which itself drew onand extended
international law principles. As the preceding analysis of the Aliens
Act shows, developments in the 1930s did not herald a new conceptualiz-
ation of protection, but rather a return to the kind of considerations with
which the British government had been concerned at the beginning of
the century. Whereas Hathaway regards the progressive international devel-
opments as a scaling up of protection, from a different viewpoint they can
be seen as a scaling down.
The League of Nations refugee instruments drafted between 1922 and
1939 were not designed to dene the socio-legal phenomenon of the refu-
gee in any comprehensive manner, nor to provide for a general right to
asylum. Rather, they carved out particular classes of beneciaries for
League assistance: for identity documents, funding, and so on. They
were technical denitions used for legal and administrative purposes,
social (193539, when refugees were seen as helpless casualties of broad-based social or
political occurrences); and the individual (193850, when refugees were perceived as
those escaping injustice or a fundamental incompatibility with the home state): see
Hathaway, The Evolution of Refugee Status in International Law: 19201950, 348,
349. (1984) (33)2 International and Comparation Law Quarterly pp. 34880.
135. Hathaway, The Evolution of Refugee Status in International Law, 348, 371. This is
also reinforced by his introductory remarks that for more than four hundred years prior to
1920, there was little concern to delimit the scope of the refugee denition, and the
reign of liberalism . . . led most European powers to permit essentially uncontrolled and
unrestricted migration. This free movement came to an abrupt halt after the First World
War, and governments began to adopt more guarded approaches to immigration in general
and to refugee movements in particular; ibid., 348, 348 (fns. omitted).
136. Hathaway, The Law of Refugee Status, 5 (emphasis added).
137. James C. Hathaway, A Reconsideration of the Underlying Premise of Refugee
Law, Harvard International Law Journal 31 (1990), 129, 140.
which did not encompass refugees in a wider, political sense.
138
They
were also considered to be temporally limited rather than serving a univer-
sal function.
139
In this way, they were more limited than the asylum pro-
vision of the 1905 Aliens Act.
The League refugee denitions, based on an individuals nationality or
ethnicity, are today typically contrasted to the concept of the refugee as
someone eeing persecution, which characterizes the 1951 Refugee
Convention. Accordingly, persecution is commonly periodized as a mid-
twentieth-century phenomenon.
140
Hathaway argues that it evolved from
the 1938 Convention Concerning the Status of Refugees coming from
Germany, and was rephrased in the 1946 IRO Constitution and sub-
sequently the 1951 Refugee Convention.
141
The received narrativethat
international instruments developed in the 1920s, that the concept of per-
secution appeared in the 1930s and 1940s, and that this all progressed to
the 1951 Conventionis valid on a narrow view of just where and how
international refugee law emerged. Another view is that these decades
were characterized by retreat. Thus, the (re)emergence of the term perse-
cution in the 1940s was not revolutionary, but evolutionary.
142
Certainly, as far as the British were concerned, the tendency over these
decades was to question the principle of an individuals right to asylum
based on persecution or any other groundsnot to bolster it. This was the
case both in its domestic asylum and immigration laws (taking the Aliens
Act as a benchmark) and in its engagement with international law. If any-
thing, the Aliens Act became a problem for the British; something to side-
step. Tellingly, British representatives in interwar discussions tended to
cast back not to the Act and its asylum clause, but beyond it, to the earlier
138. Hope Simpson, Refugees, 1; see also John Hope Simpson, The Refugee Problem:
Report of a Survey (London: Oxford University Press, 1939), 3; Goodwin-Gill,
International Law and the Movement of Persons, 138.
139. Hope Simpson, Refugees, 76: suggestions for a permanent refugee service were not
met with enthusiasm. See also Tommie Sjberg, The Powers and the Persecuted: The
Refugee Problem and the Intergovernmental Committee on Refugees (Lund: Lund
University Press, 1991), 37.
140. See discussion in Price, Rethinking Asylum, 2425; Gervase Coles, Approaching the
Refugee Problem Today, in Refugees and International Relations, ed. Gil Loescher and
Laila Monahan (New York: Oxford University Press, 1989), 37475; and Astri Suhrke,
Global Refugee Movements and Strategies of Response, in US Immigration and
Refugee Policy: Global and Domestic Issues, ed. Mary M. Kritz (Lexington: Lexington
Books, 1983), 159.
141. Hathaway, A Reconsideration of the Underlying Premise of Refugee Law, 139;
and Hathaway, The Law of Refugee Status, 99.
142. This language is borrowed from a slightly different context in Guy S. Goodwin-Gill,
Editorial: The International Protection of Refugees: What Future? International Journal of
Refugee Law 12 (2000): 2.
and less complicated position in which the state granted asylum as a privi-
lege. This was evident at the 1938 Evian Conference, for example, which
was convened to manage the international response to another wave of
anti-Semitic domestic laws in continental Europe. The British delegate,
Lord Winterton, predictably invoked the long British tradition of asylum
that briey had been rendered an individual right by the Aliens Act, but
by this point, the British commitment to asylum that had been so strongly
defended in the discussion around the 1905 Act no longer had the same
purchase. Lord Winterton explained that although it had been the tra-
ditional policy of successive British Governments to offer asylum to per-
sons who, for political, racial or religious reasons, have had to leave
their own countries, contemporary economic and social reasons
meant that the traditional policy of granting asylum can only be applied
within narrow limits.
143
In the post-Depression context he was, in a
sense, again claiming Vattels limitation on asylum that took into account
the situation of the host country, a limit that had been noted by Sibley and
Elias early in the century.
144
Therefore, by the time Sir John Hope Simpson, who authored a number
of reports on state practice concerning refugees, conducted his 1938 sur-
vey, consensus in Britain and elsewhere had returned to the traditional
position of international law. Hope Simpson concluded that it could not
be said that individual refugees had a right of asylum. Rather, asylum
was a privilege conferred by a state, not a condition inherent in the indi-
vidual. So far as it has a technical meaning in international practice the
right of asylum refers to the custom of not allowing the extradition of
a person for a purely political offence.
145
In the same year, refugee histor-
ian Louise Holborn, herself having ed Nazi Germany, explained that
[t]he right of asylum, by which a state can accord hospitality and protec-
tion to political refugees and refuse to expatriate them even on demand of
143. First Meeting (Public) (July 6, 1938), United Kingdom (Lord Winterton) in
Proceedings of the Intergovernmental Committee: Verbatim Record of the Plenary
Meetings of the Committee, Resolutions and Reports (Evian, July 615, 1938), 14 (empha-
sis added).
144. See also later debates on the UDHR in which numbers were invoked; for example,
UNGA Ofcial Records, Part 1 (3rd Session, 1948) Summary Records of Meetings, 121st
Meeting (November 3, 1948), UN Doc. SR.121, 337 (Mr. Shahi, Pakistan); UN Economic
and social Council (ECOSOC), Commission on Human Rights, Second Session, Summary
Record of Thirty-Seventh Meeting (December 13, 1947), UN Doc. E.CN.4/SR.37
(December 13, 1947), 9 (Lord Dukeston, United Kingdom); ECOSOC, 215th meeting
(August 25, 1958), UN Doc. E/SR.215, 654.
145. Hope Simpson, Refugees, 100, referring by way of example to the French law of
March 10, 1927: extradition is not granted when the crime or offence has a political char-
acter or where circumstances show the extradition is demanded for a political purpose.
their state of origin, was widely practiced, and has been the basis for the
immediate relief of vast numbers of refugees, even though they cannot
claim it as a right.
146
From a legal perspective, there is nothing startling about these assess-
ments; they simply reected the position at international law. However,
they highlight just how idiosyncratic the asylum clause in the 1905 Aliens
Act was. Rather than asylum being a prerogative of the executive arm of
government, the Act had established a statutory guarantee of asylum,
147
which was to remain exceptional. At least as far as the British were con-
cerned, this was a history of retreat as much as a history of progression.
The Universal Declaration of Human Rights: A Right to Asylum?
The postwar period was a critical point at which legal scholars took stock
of the codied right to asylum. In doing so, some looked back to the 1905
Aliens Act. Felice Morgenstern, who was to go on to prepare a denitive
account of the drafting of the UDHR, was one who did so. In 1949, she
described the Act as an early instance of waiving the application of immi-
gration law by explicitly exempt[ing] political and religious refugees from
the main excluding provisions.
148
And she also saw that some 45 years
after its own commitment to an individuals right to asylum, a
British-driven amendment to the draft UDHR undid any such right, at
least from the perspective of the individual. In her view, it made the
right of asylum meaningless.
149
How did this come about? What was
the afterlife, in international law, of an individual right to asylum that
the Aliens Act briey had codied in domestic law?
The mass displacement resulting from World War II provided the
impetus for a right of asylum to be included in the UDHR. This was the
rst time that such a right had been included in an international instrument,
not least an international bill of rights. John Humphrey, the inaugural direc-
tor of the Division of Human Rights at the United Nations who was
responsible for the rst draft, reected that no provision was more criti-
cized than that on asylum.
150
He conceded that it was probably too
146. Louise W. Holborn, The Legal Status of Political Refugees, 19201938, American
Journal of International Law 32 (1938): 680, 681.
147. Goodwin-Gill, International Law and the Movement of Persons, 99.
148. Morgenstern, The Right of Asylum, 339. For later examples in other countries, see
33940.
149. Ibid, 337.
150. John P. Humphrey, Human Rights and the United Nations: A Great Adventure
(Dobbs Ferry: Transnational Publishers, 1984), 70.
much to expect that governments would give up their discretionary power
under international law to refuse to allow foreigners to enter their terri-
tories, pointing out that his draft acknowledged this by simply reiterating
the existing position in international law: Every State shall have the right
to grant asylum to political refugees.
151
This effectively sidetracked the
issue as to whether an individual right of asylum existed.
152
During the drafting negotiations, there was erce debate between the
states that felt strongly that a declaration of human rights ought to provide
for an individual right to be granted asylum, and those that believed that
the instrument should reect merely a right to seek asylum, leaving it to
the discretion of states to grant it. The draft texts oscillated between
these two positions. British delegates involved in the drafting process
squarely based their interventions on the traditional international law pos-
ition: that asylum was a prerogative of the state to bestow, and not a right
of the individual to demand.
By the conclusion of the second session of the Commission on Human
Rights at the end of 1947, the following draft text was adopted: Every one
shall have the right to seek and be granted asylum from persecution. This
right will not be accorded to criminals nor to those whose acts are contrary
to the principles and aims of the United Nations.
153
Signicantly, given
Britains legislative history, the United Kingdom delegate raised strenuous
objections to the words and be granted asylum. He argued that some
countries might not be able to absorb large numbers of refugees, and
that the State should have the right, for any reason considered right and
proper, to refuse to grant asylum.
154
He advocated for a return to the orig-
inal text of the Drafting Committee that imposed no such obligation, but
this was rejected.
155
151. ECOSOC, Commission on Human Rights, First Session, Report of the Drafting
Committee to the Commission on Human Rights, UN Doc. E/CN.4/21 (July 1, 1947), 19.
This provision was sponsored by Lebanon and China: ECOSOC, Commission on Human
Rights, Drafting Committee, First Session, Summary Record of the Fourth Meeting, UN
Doc E/CN.4/AC.1/SR.4 (June 13, 1947), 9. For a brief discussion of the drafting history,
see Johannes Morsink, The Universal Declaration of Human Rights: Origins, Drafting,
and Intent (Philadelphia: University of Pennsylvania Press, 1999), 7576.
152. Humphrey, Human Rights and the United Nations, 70.
153. Geneva text: text adopted at the 2nd session of the Commission, ECOSOC Ofcial
Records, 3rd Year: 6th Session, Supp. No. 1, Report of the Commission on Human Rights,
UN Doc. E/600 (December 17, 1947), Annex A, art. 11. For comment, see E/CN.4/57
(December 10, 1947), 9 and E/CN.4/57/Add.1 (December 17, 1947) (emphasis added).
154. ECOSOC, Commission on Human Rights, Second Session, Summary Record of
Thirty-Seventh Meeting (December 13, 1947), UN Doc. E.CN.4/SR.37 (December 13,
1947), 9 (Lord Dukeston, United Kingdom).
155. Rejected eleven votes to four, with two abstentions. Ibid., 10.
The United Kingdom delegation then proposed an alternative text:
Everyone shall have the right to seek and may be granted asylum from
political, racial and religious persecution.
156
It sought to frame this
reconguration of the asylum provision within an overarching concern
that the UDHR should be throughout in declaratory and not in mandatory
form, which would align better with its purpose as a statement of
ideals.
157
France proposed removing the express reference to a right to
be granted asylum, but suggested adding [t]he United Nations is bound
to secure them such asylum,
158
which in effect amounted to a similar
guarantee. The United States proposed modifying the wording to suggest
only a right to be granted temporary asylum.
159
In light of these propo-
sals, a drafting sub-committee composed of the United Kingdom, France,
and China came up with a revised text. Although it retained a reference to
being granted asylum, it was now phrased as permissive, rather than obli-
gatory: Everyone shall have the right to seek and may be granted asylum
from persecution. The United Nations is bound to secure this asylum in
agreement with Member States. Prosecutions genuinely arising from non-
political crimes or from acts contrary to the purposes and principles of the
United Nations do not constitute persecution.
160
The delegate from the American Federation of Labor criticized the man-
datory nature of the provision as being without any real value.
161
She
described the right to asylum from persecution as the natural corollary
to the right to hold or change ones beliefs, which was mentioned several
156. ECOSOC, Commission on Human Rights, Third Session, Comments from
Governments on the Draft International Declaration on Human Rights, Draft International
Covenant on Human Rights and the Question of Implementation: Communication received
from the United Kingdom, UN Doc. E/CN.4/82/Add.9 (May 10, 1948), 5. See, also, the
Australian proposal to delete the reference to the right to be granted asylum: UN Doc. E/
CN.4/AC.1/21 (May 6, 1948), 1.
157. ECOSOC, Commission on Human Rights, Third Session, Comments from
Covenant on Human Rights and the Question of Implementation: communication received
from the United Kingdom, UN Doc. E/CN.4/82/Add.9 (May 10, 1948), 2.
158. ECOSOC, Commission on Human Rights, Third Session, Observations of
Covenant on Human Rights, and Methods of Implementation: communication received
from the French Government, UN Doc. E/CN.4/82/Add.8 (May 6, 1948), 3.
159. UN Doc. E/CN.4/AC.1/20 (May 5, 1948), 8.
160. UN Doc. E/CN.4/AC.1/39 (May 18, 1948), 1. With minor stylistic changes, this was
the text put to the delegates: see UN Doc. E/CN.4/104 (May 27, 1948); UN Doc. E/CN.4/99
(May 24, 1948); and UN Doc. E/CN.4/102 (May 27, 1948).
161. UN Doc. E/CN.4/SR.56 (June 4, 1948), 7 (Miss Sender, American Federation of
Labor). This view was supported by eminent international lawyers, such as Lauterpacht,
International Law and Human Rights.
times in the draft declaration. This view was echoed by the World Jewish
Congress delegate who regarded the right to asylum as implicit in the con-
cept of the right to life.
162
He argued that in claiming that right, refugees
were not asking for permanent homes but for temporary safety from perse-
cution. Given that governments such as the United Kingdom, United
States, France, and the Union of Soviet Socialist Republics had shown
generosity in sheltering many Jewish refugees before and during World
War II, it was difcult to believe that their representatives in the
Commission would oppose the inclusion of the right to asylum.
163
To
address the concerns of the United Kingdom and France, he proposed
amending wording to the provision to the effect that states were obliged
to secure the right to asylum and that the limitations of that obligation
would be laid down in conventions established under the auspices of the
United Nations.
164
Noting that the right had been observed in Europe
in the Middle Ages and was being observed now in the Mohammedan
countries, he asserted that: The Bill of Human Rights would mean little
to those who most eagerly awaited it, if the right to asylum, in principle,
was not included.
165
After considerable debate, and, according to political
theorist Johannes Morsink, as a result of non-governmental organization
interventions by the American Federation of Labor and the World
Jewish Congress,
166
delegates voted on and accepted the re-inclusion of
obligatory language: Everyone has the right to seek and be granted in
other countries asylum from persecution.
167
A number of states proposed amendments to this text.
168
These can be
divided broadly into states that sought to nesse
169
or extend the obligation
162. UN Doc. E/CN.4/SR.56 (June 4, 1948), 7 (Mr. Bienenfeld, World Jewish Congress).
163. Ibid.
164. Ibid, 8.
165. Ibid.
166. Morsink, The Universal Declaration of Human Rights, 77.
167. UN Doc. E/CN.4/SR.57 (June 7, 1948), 11; Report of the 3rd Session of the
Commission on Human Rights (May 24June 18, 1948), UN Doc. E/800 (June 28,
1948), 11; nal text adopted UN Doc. A/C.3/326 (November 8, 1948), 1.
168. Summarized in UN Doc. A/C.3/285/REV.1 (October 30, 1948) (namely, proposed
amendments by the Union of Soviet Socialist Republics (USSR), Bolivia, Cuba, Saudi
Arabia, France, the United Kingdom, Egypt, New Zealand, and Uruguay).
169. USSR: see reference above to its proposal to grant asylum to particular categories of
persons; Cuba; Egypt. France reintroduced its proposal that the United Nations work with
states to secure asylum for individuals. The Dutch delegate noted that in some circumstances
a state would simply be unable to admit all those in need of protection, and for this reason,
he proposed that to seek and be granted asylum be augmented with the words to the
extent that this is possible: UNGA Ofcial Records, Part 1 (3rd Session, 1948)
Summary Records of Meetings, 121st Meeting (November 3, 1948), UN Doc. SR.121,
331 (Mr. Beaufort, The Netherlands).
(for example to include asylum in embassies),
170
and those that wanted to
remove the right to be granted asylum altogether.
171
Throughout the negotiations, the United Kingdom was one of the stron-
gest opponents to the inclusion of an individual right to be granted asylum.
It reserved its most forceful intervention for debate in the Third Committee
in the General Assembly. Mrs. Corbet, the United Kingdom delegate,
framed the argument in terms of the states sovereign right to determine
who entered its territory, noting that any provision that compelled a state
to confer asylum on an individual would be contrary to almost all existing
immigration laws.
172
A measure of how considerably the British position had retreated since
the adoption of the 1905 Aliens Act is apparent in this summary of the
Third Committee debate:
The Government of the United Kingdom was ready to guarantee that any
persecuted person asking it for refuge would be treated with sympathy. But
no State could accept the responsibility imposed by article 12 [now article
14 of the UDHR]. The United Kingdom had often had occasion to offer asy-
lum to political refugees, notably to Garibaldi, Mazzini, Kossuth, Marx and
Lenin, but it had not done so under obligation. It had always made use of its
right to admit any particular person, and intended to continue to do so in the
future.
Mrs. Corbet thought that the basic text of article 12 was closely linked to
immigration laws, inasmuch as it gave any person or group of persons perse-
cuted for political or other reasons the right to demand admission into the
country of their choice. Such was not the intention of article 12; nevertheless,
the United Kingdom delegation thought its adoption impossible, as no
foreigner could claim the right of entry into any State unless that right
were granted by treaty.
173
170. Bolivia, Uruguay; see discussion in UNGA Ofcial Records, Part 1 (3rd Session,
1948) Summary Records of Meetings, 121st Meeting (November 3, 1948), UN Doc.
SR.121, 32829.
171. Saudi Arabia, the United Kingdom, New Zealand (which withdrew its amendment;
see UNGA Ofcial Records, Part 1 (3rd Session, 1948) Summary Records of Meetings,
121st Meeting (November 3, 1948), UN Doc. SR.121, 327).
172. UNGA Ofcial Records, Part 1 (3rd Session, 1948) Summary Records of
Meetings, 121st Meeting (November 3, 1948), UN Doc. SR.121, 331 (Mrs. Corbet,
United Kingdom). The representatives of Uruguay and Mexico both noted that they
restricted immigration, but not the right of asylum, 333 (Mr. Jimnez de Archaga,
Uruguay); 333 (Mr. Campos Ortiz, Mexico).
173. UNGA Ofcial Records, Part 1 (3rd Session, 1948) Summary Records of
Meetings, 121st Meeting (November 3, 1948), UN Doc. SR.121, 330 (Mrs. Corbet,
United Kingdom).
For Britain, the right of asylum now meant simply the right of every
State to offer refuge and to resist all demands for extradition (encompassed
by the notion to enjoy ... asylum contained in the British-proposed amend-
ment).
174
The British conception of the right to seek and to enjoy asylum
was a compromise between the right of the state to control admission to
its territory, and the protection of persecuted persons.
175
Although Britain
agreed not to grant to a person eeing persecution the right to enter any
and every country, it would ensure for him the enjoyment of the right
to asylum once that right had been granted him.
176
Ultimately, enough states supported this, and the removal of the obli-
gation to grant asylum was secured.
177
France abstained from the vote
on the basis that the wording unduly weakened the article because the
persecuted needed to receive asylum, not merely the right of asylum.
178
However, it did not want to vote against it, as it was essential for the
declaration to contain an article dealing with the right of asylum.
179
Accordingly, the nal provision read: Everyone has the right to seek
and to enjoy in other countries asylum from persecution.
180
Writing in 1948, Hersch Lauterpacht, the Whewell Professor of
International Law at Cambridge, dismissed the provision as an ambiguous
play of words.
181
He regarded its formulation as articial to the point of
ippancy because it did nothing more than restate states longstanding and
indisputable right under international law to offer refuge and to resist all
demands for extradition.
182
Lauterpacht regarded it as couched in a
language which is calculated to mislead and which is vividly reminiscent
174. Ibid., (Mrs. Corbet, United Kingdom), referring to amendment in A/C.3/253.
175. Ibid., 33031 (Mrs. Corbet, United Kingdom).
176. Ibid., 340 (Mrs. Corbet, United Kingdom).
177. See the support from the following delegations: ibid., 331 (Mr. Baroody, Saudi
Arabia); 332 (Mr. Plaza, Venezuela); 33435 (Mr. Habib, India); and 338 (Mr. Watt,
Australia); 122nd meeting, November 4, 1948, UN Doc. SR.122: Haiti, Venezuela,
Greece. In the nal vote, the United Kingdom proposal was adopted by thirty votes to
one, with twelve abstentions: UNGA Ofcial Records, Part 1 (3rd Session, 1948),
Summary Records of Meetings, 122nd Meeting (November 4, 1948), UN Doc. SR.122,
344.
178. Ibid., 342 (Mr. Cassin, France).
179. Ibid., 347 (Mr Cassin, France).
180. UN Doc. A/C.3/326 (November 8, 1948), 1. The second paragraph reads:
Prosecutions genuinely arising from non-political crimes or from acts contrary to the pur-
poses and principles of the United Nations do not constitute persecution.
181. Lauterpacht, International Law and Human Rights, 421. The same argument is set
out in Hersch Lauterpacht, The Universal Declaration of Human Rights, British Year
Book of International Law 25 (1948): 37374.
182. Citing the British delegates conception of the right to enjoy asylum, in UN Doc.
SR.121, 5 and Lauterpacht, International Law and Human Rights, 422.
of international instruments in which an ingenious and deceptive form of
words serves the purpose of concealing the determination of States to retain
full freedom of action. Reecting on the drafting process, he observed that
far from entrenching any legal obligation, there was no intention to
assume even a moral obligation to grant asylum; in fact, [t]here was
an explicit disclaimer of any such intention.
183
Britains retreat from its position at the start of the century, and the
acceptance by other states that asylum was something that an individual
was entitled to seek and enjoy, but not necessarily be granted, was
undoubtedly inuenced by contemporary political events. The 1948
ArabIsraeli war had uprooted many thousands of people and was raging
while the Third Committee was deliberating on the content of the asylum
provision. In one scholars view, this explains why the teeth were taken
out of the article.
184
Viewing this within a longer historical trajectory, it
becomes clear that two major exoduses, circa 1900 and 1948, intersected
in important respects with formulations of asylum in both international
and domestic law. Put another way, there is an international history to
the modern British legal tussle with the right to asylum. The converse is
also the case: the international legal history of the right to asylum has an
important British history, stemming not least from Britains long involve-
ment in Jewish territorial and asylum questions.
Conclusion
The UDHR is not the trajectory into which the Aliens Act is usually
placed. It is more commonly historicized as British domestic immigration
law, an antecedent to the 1962 Commonwealth Immigrants Act that was in
2012fty years laterremembered mostly as cruel and brutal
anti-colour legislation.
185
The fact that it encoded an individuals right
to asylum in domestic law for the rst time is not often remembered, per-
haps because British ofcials subsequently distanced themselves so
actively from this principle. Bringing together international and domestic
law in this way reveals a certain irony in the rst half of the twentieth
183. Lauterpacht, International Law and Human Rights, 422.
184. Morsink, The Universal Declaration of Human Rights, 78, referring to the right to
seek and be granted . . . asylum from persecution, contained in Report of the Third Session
of the Commission on Human Rights (24 May to 18 June 1948), UN Doc. E/800 (June 28,
1948), Annex A, p. 11, 12.
185. Don Flyn, Marking 50 Years of Commonwealth Immigration Controls, http://
www.migrantsrights.org.uk/blog/2012/01/marking-50-years-commonwealth-immigration-
controls (November 20, 2012).
century, as far as refugee law is concerned. The Aliens Act, so often under-
stood to be problematic race-based immigration law, in fact asserted an
individual right to asylum. The UDHR, so often held up as asserting indi-
vidual human rights, in fact diminished this particular one.
The Aliens Act was a law prompted by pogroms and by the growing glo-
bal normalcy of immigration restriction and exclusion, implicitly and
sometimes explicitly on the basis of race or nationality. But it was clearly
so much else besides. The asylum clause places it at the crossroads of sev-
eral legal traditions within both domestic and international law: the history
of political asylum and extradition, the history of excluding the enemy
alien who might threaten a states political security, the history of immigra-
tion law in which undesirable entrants were dened and excluded, and the
history of international refugee law. Each of these dealt with the question
of entry to, and exclusion from, the modern state, but none was quite redu-
cible to the other.

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The Right to Asylum: Britains 1905 Aliens

Act and the Evolution of Refugee Law

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