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 defined “undesirable immigrants.” This was a trend that intensified 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. The entry and movement of other populations also began to 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 introduction 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. 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 defined for the first time in British law the notion of the “undesirable 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, and of British Jewry and British anti-Semitism on the other. Exclusion based on ethnic and religious grounds has dominated both analyses. Thus, the Act has been framed as the major antecedent to Britain's 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.
1. For the proliferation of immigration law internationally see McKeown, Adam M., Melancholy Order: Asian Migration and the Globalization of Borders (New York: Columbia University Press, 2008); Lake, Marilyn and Reynolds, Henry, Drawing the Global Color Line: White Men's Countries and the International Challenge of Racial Equality (Cambridge: Cambridge University Press, 2008); and Geiger, Andrea, Subverting Exclusion: Transpacific Encounters with Race, Caste, and Border, 1885–1928 (New Haven: Yale University Press, 2011).
2. For the United States, see, for example, Briggs, Vernon M., Immigration Policy and the American Labor Force (Baltimore: Johns Hopkins University Press, 1984); Calavita, Kitty, US Immigration Law and the Control of Labor, 1820–1924 (London and Orlando: Academic Press, 1984); Chan, Sucheng, ed., Entry Denied: Exclusion and the Chinese Community in America, 1882–1943 (Philadelphia: Temple University Press, 1991); Gyory, Andrew, Closing the Gate: Race, Politics, and the Chinese Exclusion Act (Chapel Hill: University of North Carolina Press, 1998); King, Desmond, Making Americans: Immigration, Race, and the Origins of Diverse Democracy (Cambridge, Mass.: Harvard University Press, 2000); and Ngai, Mae M., Impossible Subjects: Illegal Aliens and the Making of Modern America (Chicago: University of Chicago Press, 2004). Pani, Erika 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): 217–46. For the Australian and British imperial context, see Price, Charles, The Great White Walls are Built: Restrictive Immigration to North America and Australasia, 1836–1888 (Canberra: Australian National University Press, 1974); Huttenback, Robert A., Racism and Empire: White Settlers and Colored Immigrants in the British Self-governing Colonies, 1830–1910 (Ithaca: Cornell University Press, 1976); and Martens, Jeremy, “A Transnational History of Immigration Restriction,” Journal of Imperial and Commonwealth History 34 (2006): 323–44.
3. Bashford, Alison and Gilchrist, Catie, “The Colonial History of the 1905 Aliens Act,” Journal of Imperial and Commonwealth History 40 (2012): 409–37.
4. Garrard, John, The English and Immigration, 1880–1910 (Oxford: Oxford University Press, 1971); Gainer, Bernard, The Alien Invasion: The Origins of the Aliens Act of 1905 (London: Heinemann Education, 1972); Feldman, David, “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. Fahrmeir, Andreas, Faron, Olivier, and Weil, Patrick (New York: Berghahn Books, 2003), 167–77; Dummett, Ann and Nicol, Andrew G.L., Subjects, Citizens, Aliens and Others: Nationality and Immigration Law (London: Weidenfeld and Nicolson, 1990); Wray, Helena, “The Aliens Act 1905 and the Immigration Act Dilemma,” Journal of Law and Society 33 (2006): 302–23.
5. Gartner, L.P., The Jewish Immigrant in England, 1870–1914 (London: Allen & Unwin, 1960); Lee, Alan, “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, 1870–1914, ed. Lunn, Kenneth (New York: St Martin's Press, 1980), 134–59; Lammers, Benjamin J., “Alien Dick Whittingtons: The National Imagination and the Jewish East End,” Jewish Culture and History 1 (1998): 41–53; Kushner, Tony, “Racialisation and ‘White European’ Immigration to Britain,” in Racialization: Studies in Theory and Practice, ed. Murji, Karim and Solomos, John (Oxford: Oxford University Press, 2005), 207–25; and Feldman, David, “Jews and the British Empire, c. 1900,” History Workshop Journal 63 (2007): 70–89.
6. Holmes, Colin, John Bull's Island: Immigration and British Society, 1871–1971 (London: Macmillan, 1988); and Stevens, Dallal, UK Asylum Law and Policy: Historical and Contemporary Perspectives (London: Sweet and Maxwell, 2004), 19–32.
7. Aliens Act 1905 (5 Edw. VII. c. 13), s. 1(3)(d).
8. Marrus, Michael R., 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 criminals and war criminals, are not entitled to asylum: Morgenstern, Felice, “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 Lauterpacht, Hersch, International Law and Human Rights (London: Stevens and Sons, 1950).
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 immigration law is obscured. This was a trend anticipated by the Aliens Act. States retain the discretion to grant asylum beyond this designated class if they so choose. These issues are pursued to some extent by Shah, Prakash A., Refugees, Race and the Legal Concept of Asylum in Britain (London: Cavendish, 2000). However, neither the significance of religious persecution, nor the connection with extradition law, is examined there.
11. Goodwin-Gill, Guy S., International Law and the Movement of Persons between States (Oxford: Clarendon Press, 1978), 99.
12. Goodwin-Gill, Guy S. and McAdam, Jane, The Refugee in International Law, 3rd ed. (Oxford: Oxford University Press, 2007), 202.
13. Stevens, UK Asylum Law and Policy, 33, 39.
14. Grahl-Madsen, Atle, 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”: Glynn, Irial, “The Genesis and Development of Article 1 of the 1951 Refugee Convention,” Journal of Refugee Studies 25 (2011): 134, 141.
15. Hathaway, James, The Law of Refugee Status (Toronto: Butterworths, 1991).
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”: Noll, Gregor, “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,” 346–48, 350–52 on the pre-1951 Refugee Convention position and the view that, even in 1949, “as a matter 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).
18. Parliamentary discussion of the aliens bills in 1904 brought to light the difficulties 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 Office (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 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 Maglen, Krista, “Importing Trachoma: The Introduction into Britain of American Ideas of an ‘Immigrant Disease’, 1892–1906,” Immigrants and Minorities 23 (2005): 80–99.
21. Aliens Act 1905, s. 1(3).
22. Ibid., s. 1(3)(d).
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.
25. Ibid., 180–1.
26. See Huttenback, Racism and Empire; and Calavita, US Immigration Law.
27. Gainer, The Alien Invasion, 190.
28. Ibid., chs. 6-8. See also Juss, Satvinder, 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.
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 advantage 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 Office audited the then colonial immigration laws, it noted specifically that in 1896 the New Zealand legislature passed an act for the restriction of Asian immigration, “but the Royal Assent was withheld, the Colonial Office objecting to any measure based expressly on racial distinction.” Aliens—Immigration—As to the Immigration Laws of the Principal British Colonies, February 12, 1907, TNA, HO 112229/20.
35. See Kramer, Paul A., “Empire against Exclusion in Early Twentieth Century Trans-Pacific History,” Nanzan Review of American Studies 33 (2011): 13–32. For labor, see Guterl, Matthew Pratt and Skwiot, Christine, “Atlantic and Pacific Crossings: Race, Empire, and the ‘Labor Problem’ in the Late Nineteenth Century,” Radical History Review 91 (2005): 40–61.
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 Bashford, Alison, “Insanity and Immigration Restriction,” in Migration, Health and Ethnicity in the Modern World, ed. Marland, Hilary and Cox, Catherine (Basingstoke: Palgrave Macmillan, 2013, 14–35).
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 benefit of the doubt be given: “the benefit 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 changed by hand to: “where any doubt exists, as to the truth of the allegation, will be allowed, and leave to land will be given.”
41. Asquith spoke in support of the bill, but nonetheless recognized its significance: “This Bill, it must be conceded, is an entirely new departure in legislation, for it gives to an officer of the Executive, by his own act, without any reference to a Court of law or to judicial procedure, 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. McAdam, Jane, “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): 27–56.
44. Lake, Marilyn, “Chinese Colonists Assert Their ‘Common Human Rights’: Cosmopolitanism as Subject and Method of History,” Journal of World History 21 (2010): 375–92. See also Meng, L. Kong, Cheong, Cheok Hong, Ah Mouy, Louis, eds., The Chinese Question in Australia, 1878–79 (Melbourne: F.F. Bailliere, 1879).
45. See, for example, Lord Campbell's 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 asylum 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 this—that 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 subjects, and if they violate those laws they are liable to be prosecuted and punished in the same manner as native-born subjects,” cited in Sibley, N.W. and Elias, Alfred, 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; Porter, Bernard, The Refugee Question in Mid-Victorian Politics (Cambridge: Cambridge University Press, 1979), ch. 1; and Isabella, Maurizio, Risorgimento in Exile: Italian Émigrés 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, 5th series, vol. 149, col. 1286.
48. Sir May, Thomas Erskine, 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.
53. “Notes of the Week: The Right of Asylum,” The Jewish Chronicle, July 14, 1905, 5–6.
54. Porter, The Refugee Question, 3.
55. Balogh suggests that religious persecution originally underpinned the concept of the “refugee” (hence the Oxford English Dictionary's earliest attribution of the term “refugee” to the Huguenots fleeing 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, beginning with the French Revolution, the Empire and the Restoration.” Balogh, Elemér, “World Peace and the Refugee Problem,” Hague Academy of International Law Recueil des Cours 75 (1949): 381.
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 satisfaction 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, 5–6, 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 privilege 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: A Study 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.”
60. “Notes of the Week: the Right of Asylum,” The Jewish Chronicle, July 14, 1905, 5–6.
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 Bill—Fugitives from Religious Persecution,” The Jewish Chronicle, May 26, 1905, 7.
65. Landa, M.J., The Alien Problem and Its Remedy (London: P.S. King and Son, 1911), 263–64, referring to Arthur Balfour, Hansard, Parliamentary Debates, House of Commons, July 10, 1905, 5th series, vol. 149, col. 157.
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 final 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. 1257–59.
68. Arthur Balfour, Hansard, Parliamentary Debates, House of Commons, July 19, 1905, 5th series, vol. 149, col. 1282.
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.
71. Arthur Balfour, Hansard, Parliamentary Debates, House of Commons, July 19, 1905, 5th series, vol. 149, col. 1286.
72. Gainer, The Alien Invasion, 193; and Marrus, The Unwanted, 37–38.
73. Mackenzie Chalmers, Minute, September 30, 1903, cited in Pellew, Jill, “The Home Office and the Aliens Act, 1905,” The Historical Journal 32 (1989): 372.
74. The challenge is documented in Pellew, “The Home Office and the Aliens Act, 1905,” 369–85.
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.
77. Marrus, The Unwanted; See also Multanen, Elina, “British Policy Towards Russian Refugees in the Aftermath of the Bolshevik Revolution,” Revolutionary Russia 12 (1999): 44–68.
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 (1906–7): 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 Edwin, FrederickBirkenhead, Smith, International Law as Interpreted During the Russo-Japanese War (Boston: Boston Book, 1905).
82. Sibley and Elias, The Aliens Act and the Right of Asylum, 130. See also Reale, Egidio, “Le droit d'asile,” Hague Recueil des Cours 63 (1938-I): 471–72.
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 Pépin, Eugène, L'Aliens Act de 1905, Causes et Résultats (Librairie Nouvelle de Droit et de Jurisprudence, Paris, 1913), 253, referring to the Meunier case (1894) 2 QB 415, 419; see also Knepper, Paul, “The Other Invisible Hand: Jews and Anarchists in London before the First World War,” Jewish History 22 (2008): 295–315.
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.
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”: Van den Wijngaert, Christine, 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: Oppenheim, L., 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, 18–19; May, Constitutional History of England, 157–58.
93. Henriques, H.S.Q., The Law of Aliens and Naturalization including the Text of the Aliens Act, 1905 (London: Butterworth and Co., 1906), 11–12.
94. May, Constitutional History of England, 284. Porter similarly emphasized the statute's 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 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 fled. The fugitive has no claim to it”: Entscheidungen des Reichsgerichts in Strafsachen 33 (1900): 99, cited in Morgenstern, “The Right of Asylum,” 327.
99. Pépin, L'Aliens 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 matière d'extradition” (1880) JDIP, 57, n. 4: “Il n'y a pas pour les réfugiés de droit à l'asile, en ce sens qu'ils pourront s'imposer au pays, dans lequel ils sont venus s'établir; ce serait contraire à toutes les notions de la souveraineté. Dans l'asile donné aux proscrits, il y a, pour le pays de refuge, l'exercice d'un droit et surtout d'un devoir, mais d'un devoir moral. Il ne faut pas oublier non plus que ce pays a aussi des obligations internationales et que celles-ci ne doivent pas être méconnues par suite de l'asile.”
100. Pépin, L'Aliens 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 Office, 1906), para. 291.
103. Scott, James Brown, “Review of The Aliens Act,” The American Journal of International Law 1 (1907): 261.
104. Gregory, Charles Noble, “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, 25–26.
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,” 327–28. 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 first statute to codify the exception, and it came to serve as an exemplar for extradition legislation in most states. Grahl-Madsen, Atle, 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 Shearer, Ivan A., 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 Scott, James Brown, 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.
111. It also exists in another form—diplomatic asylum—which describes the practice of some states, most notably those in Latin America, of providing temporary refuge in diplomatic 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, reversing 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 Green, Nancy L., “The Politics of Exit: Reversing the Immigration Paradigm,” Journal of Modern History 77 (2005): 263–89.
113. Jagerskiold argues that movement was relatively liberal in practice: Jagerskiold, A.F., “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, 19–20 June 1972, ed. Vasak, Karel and Liskofsky, Sidney (N.p.: The American Jewish Committee, 1976) 6; and McAdam, “An Intellectual History of Freedom of Movement in International Law,” 40–41.
114. Although the British Registration of Aliens Act 1836 made provisions for foreigners to produce identification 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 Office and the Aliens Act, 1905,” 370.
115. Price, Rethinking Asylum, 25. See Shearer, Ivan A., 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 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 Bassiouni, M. Cherif, 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 Shearer, Ivan A., 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 Salisbury's 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, 130–31.
119. See Resolution Adopted by the Intergovernmental Meeting at Evian, July 14, 1938, para. 8, in Proceedings of the Intergovernmental Committee (Evian, July 6–15, 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, 130–31; Pépin, L'Aliens Act de 1905, 249: “jamais l'asile n'avait été reconnu par une loi aux réfugiés religieux, c'est-à-dire aux personnes fuyant des poursuites ou des peines motivées par des croyances religieuses, ou des pérsecutions contre ces croyances.”
121. For an overview, see Stevens, UK Asylum Law and Policy, 6–14. Article 120 of the French Jacobean Constitution of 1793 declared that the French people “donne asile aux étrangers bannis de leurs pays pour la cause de la liberté. Il le refuse aux tyrans!” but the conception here is of political freedom fighters, 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 réfugiés politiques” were mentioned in Professor Martens' account of this: Sibley and Elias, 131, referring to de Martens, F., Traité du Droit International (Paris: Librairie Marescq Aine, 1883), 1: 449. The only other related example is that of the United States's 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), 279–84.
123. An Act to Regulate the Immigration of Aliens to, and the residence of Aliens in the United States 1917, Ch. 29, s. 3.
124. The United States' approach to asylum was similarly short-lived, as the Immigration Act of 1924 dispensed with such a provision: see Engstrom, David W., Presidential Decision Making Adrift: The Carter Administration and the Mariel Boatlift (Rowman and Littlefield 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”: Cohen, Steve, 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. Bonner, David, Executive Measures, Terrorism and National Security: Have the Rules of the Game Changed? (Aldershot: Ashgate, 2007), 108, citing Holmes, John Bull's Island, 87–88.
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.
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 Beck, Robert J., “Britain and the 1933 Refugee Convention: National or State Sovereignty?” International Journal of Refugee Law 11 (1999): 621–22.
133. Cited in Morgenstern, “The Right of Asylum,” 342, referring to the Official Journal of the League of Nations (1934), 373. See, further, Beck, Robert J, “Britain and the 1933 Refugee Convention: National or State Sovereignty?” International Journal of Refugee Law 11 (1999): 615: “From the Home Office's standpoint, refugees were merely another group of foreigners seeking entrance into British territory, and Britain possessed the sovereign authority to limit legitimately their entry.”
134. Hathaway, The Law of Refugee Status, 99. The first time “persecution” was included as a formal criterion of an international law refugee definition was in the 1946 IRO Constitution. Hathaway characterizes refugee law as spanning three periods: the juridical (1920–35, when refugees were defined by their lack of formal diplomatic protection); the social (1935–39, when refugees were seen as “helpless casualties of broad-based social or political occurrences”); and the individual (1938–50, 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: 1920–1950,” 348, 349. (1984) (33)2 International and Comparation Law Quarterly pp. 348–80.
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 definition,” 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. Hathaway, James C., “A Reconsideration of the Underlying Premise of Refugee Law,” Harvard International Law Journal 31 (1990), 129, 140.
138. Hope Simpson, Refugees, 1; see also Simpson, John Hope, 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 Sjöberg, Tommie, 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, 24–25; Coles, Gervase, “Approaching the Refugee Problem Today,” in Refugees and International Relations, ed. Loescher, Gil and Monahan, Laila (New York: Oxford University Press, 1989), 374–75; and Suhrke, Astri, “Global Refugee Movements and Strategies of Response,” in US Immigration and Refugee Policy: Global and Domestic Issues, ed. Kritz, Mary M. (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 Goodwin-Gill, Guy S., “Editorial: The International Protection of Refugees: What Future?” International Journal of Refugee Law 12 (2000): 2.
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 6–15, 1938), 14 (emphasis added).
144. See also later debates on the UDHR in which “numbers” were invoked; for example, UNGA Official 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 character or where circumstances show the extradition is demanded for a political purpose.”
146. Holborn, Louise W., “The Legal Status of Political Refugees, 1920–1938,” 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 339–40.
149. Ibid, 337.
150. Humphrey, John P., Human Rights and the United Nations: A Great Adventure (Dobbs Ferry: Transnational Publishers, 1984), 70.
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 Morsink, Johannes, The Universal Declaration of Human Rights: Origins, Drafting, and Intent (Philadelphia: University of Pennsylvania Press, 1999), 75–76.
152. Humphrey, Human Rights and the United Nations, 70.
153. “Geneva text”: text adopted at the 2nd session of the Commission, ECOSOC Official 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.
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 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), 2.
158. ECOSOC, Commission on Human Rights, Third Session, Observations of Governments on the Draft International Declaration on Human Rights, Draft International 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.
162. UN Doc. E/CN.4/SR.56 (June 4, 1948), 7 (Mr. Bienenfeld, World Jewish Congress).
164. Ibid, 8.
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 24–June 18, 1948), UN Doc. E/800 (June 28, 1948), 11; final 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 Official Records, Part 1 (3rd Session, 1948) “Summary Records of Meetings,” 121st Meeting (November 3, 1948), UN Doc. SR.121, 331 (Mr. Beaufort, The Netherlands).
170. Bolivia, Uruguay; see discussion in UNGA Official Records, Part 1 (3rd Session, 1948) “Summary Records of Meetings,” 121st Meeting (November 3, 1948), UN Doc. SR.121, 328–29.
171. Saudi Arabia, the United Kingdom, New Zealand (which withdrew its amendment; see UNGA Official Records, Part 1 (3rd Session, 1948) “Summary Records of Meetings,” 121st Meeting (November 3, 1948), UN Doc. SR.121, 327).
172. UNGA Official 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. Jiménez de Aréchaga, Uruguay); 333 (Mr. Campos Ortiz, Mexico).
173. UNGA Official Records, Part 1 (3rd Session, 1948) “Summary Records of Meetings,” 121st Meeting (November 3, 1948), UN Doc. SR.121, 330 (Mrs. Corbet, United Kingdom).
174. Ibid., (Mrs. Corbet, United Kingdom), referring to amendment in A/C.3/253.
175. Ibid., 330–31 (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); 334–35 (Mr. Habib, India); and 338 (Mr. Watt, Australia); 122nd meeting, November 4, 1948, UN Doc. SR.122: Haiti, Venezuela, Greece. In the final vote, the United Kingdom proposal was adopted by thirty votes to one, with twelve abstentions: UNGA Official 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 purposes 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 Lauterpacht, Hersch, “The Universal Declaration of Human Rights,” British Year Book of International Law 25 (1948): 373–74.
182. Citing the British delegate's conception of “the right to enjoy asylum,” in UN Doc. SR.121, 5 and Lauterpacht, International Law and Human Rights, 422.
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).
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.
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