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The Right to Asylum: Britain’s 1905 AliensAct and the Evolution of Refugee Law

ALISON BASHFORD AND JANE McADAM

From the 1880s, states and self-governing colonies in North and SouthAmerica, across Australasia, and in southern Africa began introducinglaws to regulate the entry of newly defined “undesirable immigrants.”1

This was a trend that intensified exclusionary powers originally passedin the 1850s to regulate Chinese migration, initially in the context of thegold rushes in California and the self-governing colony of Victoria inAustralia.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. 2014doi:10.1017/S0738248014000029

Alison Bashford is Professor of Modern History at the University of Sydney, and hasbeen elected Vere Harmsworth Professor of Imperial and Naval History, Universityof Cambridge <[email protected]>. Jane McAdam is ScientiaProfessor of Law and the Director of the Andrew & Renata Kaldor Centre forInternational Refugee Law, Faculty of Law, University of New South Wales <[email protected]>. This article has been generously funded by the AustralianResearch Council, Project DP0984518. The authors thank Fiona Chong, CatieGilchrist, 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 theGlobal Color Line: White Men’s Countries and the International Challenge of RacialEquality (Cambridge: Cambridge University Press, 2008); and Andrea Geiger, SubvertingExclusion: Transpacific Encounters with Race, Caste, and Border, 1885–1928 (NewHaven: 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, 1820–1924 (London and Orlando:Academic Press, 1984); Sucheng Chan, ed., Entry Denied: Exclusion and the ChineseCommunity in America, 1882–1943 (Philadelphia: Temple University Press, 1991);

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be regulated toward the end of the century, in particular the increasingnumber of certain Europeans migrating to the United States. It is perhapsunsurprising, then, that Britain followed this legal trend with the introduc-tion of the 1905 Aliens Act, although it was a latecomer when situated inthe global context, and certainly within the context of its own Empire.3 TheAliens Act was passed in response to the persecution of Eastern EuropeanJews and their forced migration, mainly from the Russian Empire intoBritain. It defined for the first time in British law the notion of the “undesir-able immigrant,” criteria to exclude would-be immigrants, and exemptionsfrom those exclusions. The Aliens Act has been analyzed by historians andlegal scholars as an aspect of the history of British immigration law on theone 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 (ChapelHill: University of North Carolina Press, 1998); Desmond King, Making Americans:Immigration, Race, and the Origins of Diverse Democracy (Cambridge, Mass.: HarvardUniversity Press, 2000); and Mae M. Ngai, Impossible Subjects: Illegal Aliens and theMaking of Modern America (Chicago: University of Chicago Press, 2004). Erika Pani hasexplored early nineteenth century laws in the American context, “Saving the Nation throughExclusion: Alien Laws in the Early Republic in the United States and Mexico,” TheAmericas 65 (2008): 217–46. For the Australian and British imperial context, see CharlesPrice, The Great White Walls are Built: Restrictive Immigration to North America andAustralasia, 1836–1888 (Canberra: Australian National University Press, 1974); RobertA. Huttenback, Racism and Empire: White Settlers and Colored Immigrants in the BritishSelf-governing Colonies, 1830–1910 (Ithaca: Cornell University Press, 1976); and JeremyMartens, “A Transnational History of Immigration Restriction,” Journal of Imperial andCommonwealth History 34 (2006): 323–44.3. Alison Bashford and Catie Gilchrist, “The Colonial History of the 1905 Aliens Act,”

Journal of Imperial and Commonwealth History 40 (2012): 409–37.4. John Garrard, The English and Immigration, 1880–1910 (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 aGolden Age for Immigrants? The Changing Articulation of National, Local andVoluntary Controls,” in Migration Control in the North Atlantic World: The Evolution ofState Practices in Europe and the United States from the French Revolution to theInter-War Period, ed. Andreas Fahrmeir, Olivier Faron, and Patrick Weil (New York:Berghahn Books, 2003), 167–77; Ann Dummett and Andrew G.L. Nicol, Subjects,Citizens, Aliens and Others: Nationality and Immigration Law (London: Weidenfeld andNicolson, 1990); Helena Wray, “The Aliens Act 1905 and the Immigration ActDilemma,” Journal of Law and Society 33 (2006): 302–23.5. L.P. Gartner, The Jewish Immigrant in England, 1870–1914 (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 inBritish Society, 1870–1914, ed. Kenneth Lunn (New York: St Martin’s Press, 1980),134–59; Benjamin J. Lammers, “Alien Dick Whittingtons: The National Imagination andthe Jewish East End,” Jewish Culture and History 1 (1998): 41–53; Tony Kushner,“Racialisation and ‘White European’ Immigration to Britain,” in Racialization: Studies in

Law and History Review, May 2014310

Exclusion based on ethnic and religious grounds has dominated both ana-lyses. Thus, the Act has been framed as the major antecedent to Britain’smore substantial and enduring legislative moves in the 1960s to restrictentry, regulate borders, and nominate and identify “undesirable” entrantseffectively (if not explicitly) on racial grounds.6

In this article, we refocus analysis onto the Act’s most surprising yetunderinvestigated clause. Counterintuitively, given its exclusionary pur-pose, the Act contained an asylum provision, permitting entry into theUnited Kingdom for those who were at risk of persecution or prosecutionfor political or religious reasons. The clause exempted from the bar onentry. “An immigrant who proves that he is seeking admission to thiscountry solely to avoid prosecution or punishment on religious or politicalgrounds or for an offence of a political character, or persecution, involvingdanger of imprisonment or danger to life or limb on account of religiousbelief, leave to land shall not be refused.”7

Historians have generally downplayed this clause, suggesting that itsoverall impact was to constrain the prior British policy and practice ofopen borders.8 We argue that it had much greater significance. Set withinan international context, the codification of a right to asylum was highlyunusual. Although it was undisputed at the time, as now, that states pos-sessed the right under international law to grant asylum to whomever theywished,9 the statute framed it as a right that individuals could claim to securetheir admission to Britain. The mandatory language of the Act—“leave toland shall not be refused”—transformed the state’s discretion to turn awaycertain persons from the border into a right of entry for those fleeing

Theory and Practice, ed. Karim Murji and John Solomos (Oxford: Oxford University Press,2005), 207–25; and David Feldman, “Jews and the British Empire, c. 1900,” HistoryWorkshop Journal 63 (2007): 70–89.6. Colin Holmes, John Bull’s Island: Immigration and British Society, 1871–1971

(London: Macmillan, 1988); and Dallal Stevens, UK Asylum Law and Policy: Historicaland Contemporary Perspectives (London: Sweet and Maxwell, 2004), 19–32.7. 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 ofAsylum,” British Year Book of International Law 26 (1949): 327, 330. This is the reasonfor the exception to the right to asylum in article 14(2) of the UDHR (adopted December10, 1948) United National General Assembly (UNGA) res. 217A (III): “This right maynot be invoked in the case of prosecutions genuinely arising from non-political crimes orfrom acts contrary to the purposes and principles of the United Nations.” See also HerschLauterpacht, 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 thehistory of domestic immigration law.10 The asylum clause seems knownto only a few scholars of international refugee law, and its full significancehas not been recounted. Guy Goodwin-Gill has recognized that the Act cre-ated “statutory guarantees of asylum [that] were generous by any modernstandard,”11 and with McAdam, has stated that a “sense of the need to pro-tect the persecuted can be gathered from the United Kingdom’s 1905Aliens Act.”12 Dallal Stevens has explained that the Act’s inclusion ofan “asylum clause” marked it as a “novel departure” from past legislativepractices, leading to “the development of a modern form of UK refugeelaw,” with refugees “defined for the first time in statutory form.”13 AtleGrahl-Madsen has noted in passing that the Act, and its successors of1914 and 1919, were “particularly important stepping-stones” in the his-tory of modern aliens legislation.14 James Hathaway’s periodization ofinternational refugee law has been influential in reinforcing the idea thatdefining the “refugee” by virtue of an individual fear of persecution waslate to emerge, however.15 In this article, we show that these concepts

10. Immigration law and refugee law are not synonymous, although in British scholarshipas elsewhere, they are often taken to be. Immigration law describes the practice of states inregulating, at their discretion, the admission and removal of non-citizens to and from theirterritory. Refugee law, by contrast, is premised on binding international legal obligationsthat require states to extend protection to certain classes of persons at risk of persecutionor other forms of serious harm. However, as refugee provisions are typically subsumedwithin 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 arepursued to some extent by Prakash A. Shah, Refugees, Race and the Legal Concept ofAsylum in Britain (London: Cavendish, 2000). However, neither the significance of religiouspersecution, 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 Conventionemphasized individual persecution, much like the British 1905 Aliens Act”: Irial Glynn,“The Genesis and Development of Article 1 of the 1951 Refugee Convention,” Journalof Refugee Studies 25 (2011): 134, 141.15. James Hathaway, The Law of Refugee Status (Toronto: Butterworths, 1991).


and apparent innovations were already features of Britain’s 1905 Aliens Act.Fully incorporating the Aliens Act into refugee law scholarship—both dom-estic and international—re-periodizes the received history of how, where,and when the right to asylum from persecution became codified.Our argument proceeds in three parts. First, the Aliens Act uniquely, if

briefly, codified an individual right to asylum in British law. Second, iteffectively established a refugee category as part of immigration law, apractice that became standard in the later twentieth century and remainsso today, but which was not the case previously. Third, the Aliens Actmarked the moment when what we now think of as “asylum,” namely pro-tection from persecution, entered domestic immigration law. Moreover, theAct named religious persecution. Thus, the concept of asylum in domesticlaw started to transform from an exception to extradition for a politicaloffence, which was its nineteenth century connotation, into a basis foradmission for humanitarian reasons.16

The introduction of an asylum clause is a British distinction for whichearly twentieth century politicians in Westminster and policy makers inWhitehall, responsible for the asylum clause, might have been justlyproud. But the British defense of an individual’s right to asylum was asshort lived as the Act itself, suspended on the declaration of war in1914. In this article, we briefly trace the idea of a “right to asylum” throughinterwar and mid-twentieth century discussions on international law,including the critical drafting of the Universal Declaration of HumanRights (UDHR) in the late 1940s.17 The defense of an individual’sright to asylum, almost chauvinistically argued into British domestic lawat the beginning of the century, was rejected by British delegatesduring the UDHR’s drafting. Indeed, it was a British amendment thatreduced the UDHR’s asylum provision to nothing more than a restatementof 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 citedin Morgenstern, “The Right of Asylum,” 327; and Musgrove v Chun Teeong Toy (1891) AC272. Today, whereas aliens do not possess a “right” to be admitted to another country, theprinciple of non-refoulement precludes rejection at the frontier. In other words, states mustnot return persons to any territory where they have a well-founded fear of persecution or facea real risk of certain other forms of serious harm. In practice, this amounts to what Noll hasdescribed as “a right to transgress an administrative border”: Gregor Noll, “Seeking Asylumat Embassies: A Right to Entry under International Law?” International Journal of RefugeeLaw 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 mat-ter of policy, refugees are not sent back to their home state.” (348, emphasis added) Seefurther, 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 conventionalunderstanding 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 artificialthat 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 causallink. Far from being a model for the later international codification ofthe 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 Act—typically criticized for itsracist exclusions—turns out to have upheld an individual right to asylumthat even the UDHR did not.

The 1905 Aliens Act

In 1882, the so-called “May laws” enacted by the Russian tsar, AlexanderIII, affected Jews in Russia and Russian Poland, restricting their social andeconomic participation, conduct, and mobility. Pogroms through the 1880sand 1890s forced many thousands to migrate from ports in continentalnorthern Europe, with most intending to land eventually in the UnitedStates, 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 nocomprehensive system of regulation, restriction, or even of registration ofentrants in Britain, notwithstanding the Registration of Aliens Act 1836,a statute so thinly implemented, if at all, that by the end of the centuryit had been more or less forgotten. In 1891, the Privy Council had affirmedthat 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 difficulties inascertaining 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 Act1905,” 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 emergencyquarantine regulations, themselves diminishing as the century pro-gressed.20 This is what the Aliens Act turned around. It received royalassent in August 1905, and took effect from January 1, 1906.The statute defined certain immigrants as “undesirable” using a range of

criteria, set out a number of exceptions, and detailed the processes bywhich undesirable immigrants could be turned back at various ports, bedeported if already resident, and appeal against such decisions.“Undesirable immigrants” were defined 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 torender 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 flipside to extradi-tion as a defense to removal), the Act contained an exception forimmigrants “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 immigrantsseeking 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 statutesin other jurisdictions in this period, the passage of the Aliens Act wasfraught with political difficulty. Multiple Aliens Bills introduced by theConservatives—in January 1897, February 1898, and April 1904—wereroundly 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 theright to refuse to permit an alien to enter that State, to annex what conditions it pleases tothe permission to enter it, and to expel or deport from the State, at pleasure, even a friendlyalien, especially if it considers his presence in the State opposed to its peace, order, and goodgovernment, or to its social or material interests: Vattel, Law of Nations, book 1, s. 231; book2, 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 ‘ImmigrantDisease’, 1892–1906,” Immigrants and Minorities 23 (2005): 80–99.21. 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 remainsthe distinguished account. Gainer, The Alien Invasion.


context that gave rise to the early bills was the coincidence of the Jewishpogroms, the 1890s economic depression, and the rise of British labor poli-tics in which London’s East End votes were critical in a franchise thatentitled all male householders.25Anti-immigrationists cast EasternEuropean 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 beingpoliticized by an emerging Labor movement. As in other national contextsin which immigration laws were being introduced, a core rationale for therestriction of entry of aliens centered on the regulation of labor.26 Unlikeother national contexts, however, there was a long British tradition of lib-eral politics that objected to the regulation of anything, including workingconditions and immigration. On these grounds and others, the successiveAliens Bills and the very principle of immigration restriction were resistedby the Liberals as an attempt to introduce “back-door” labor law, and evenas 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, unreservedlyobjected to immigration restriction on these grounds. Deeply opposed toprotection of the labor market, he argued that the free movement of peoplenecessarily went along with the free trade of goods.28

Throughout the 1890s and into the early twentieth century, a starkand populist anti-Semitism was at work in the East End of London. Andalthough regularly denied at the time, it was evident in Westminster andWhitehall as well.29 It is also the case, however, that many stood readyto expose anti-Semitism in the context of the Aliens Bills and the rise ofanti-immigration lobbying.30 Therefore, if the bills were proposed and dri-ven through as part of British anti-Semitism, they were also resisted as partof British opposition to anti-Semitism. As the parliamentary debate on theunsuccessful Aliens Bill of 1904 was reported in The New York Times:“Opposition to the Aliens Bill . . . was based largely on the belief thatthe measure was essentially Anti-Semitic. Indeed it was alleged by some

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 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 theirinterests were taken up directly by some members of Parliament, notablyStuart Samuel, the Liberal member for Whitechapel. In public debates onthe bills, in organized lobbying against them, and in monitoring theimplementation of the Act as finally passed, Jewish members of Parliament,such as Samuel, and, especially, Lord Rothschild were key figures: 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 Actwere to be applied with respect to Eastern European Jews, as they formedthe bulk of entrants under the Act’s definition of “immigrant” in thoseyears. However, neither the bills, nor the Act, nor the returns to be com-pleted at port of entry, mentioned Jews specifically.33 British governmentsand 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 BritishEmpire sought to mention Chinese, Indians, or Japanese in their immigra-tion statutes, it was the Colonial Office in London that typically temperedsuch propositions.34 The explicit nomination of a “Chinese ExclusionAct,” 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 onAliens Bill. Measure Hotly Attacked. Government denies it was Prompted by Dislike ofJews 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 ofDeputies on the Aliens Bill, May 19, 1904, TNA HO 45/10303/117267/78. Rothschildwas 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 thegovernment.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 ageand sex, nationality, last permanent place of address, proposed place of abode in theUnited Kingdom, occupation, means, prospects of support, conviction of crimes, andwhether 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 restrictionof Asian immigration, “but the Royal Assent was withheld, the Colonial Office objecting toany measure based expressly on racial distinction.” Aliens—Immigration—As to theImmigration Laws of the Principal British Colonies, February 12, 1907, TNA, HO112229/20.


most immigration restriction statutes of the period, the complete exclusionof 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 defined “immigrant” as “an aliensteerage passenger,”36 and, further, leaving discretion with the Secretaryof State, defined a “steerage passenger” as any passenger not deemed bythe Secretary of State to be a “cabin passenger.”37 It applied only toships that held twenty or more such immigrants,38 and this had no appli-cation to other people seeking leave to land. One criterion for exclusionwas steerage passengers’ incapacity to show that they could support them-selves financially. Again, this was standard for most immigration laws atthe time; indeed, it was derivative of United States and colonial lawsthat 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, orall Jews, but instead only criminal aliens, the destitute, the ill, or theinfirm who, it was claimed, would burden Britain’s Poor Law institutionsand 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 first implementthe Aliens Act from early 1906. They did not repeal the controversial legis-lation, but they did seek to mitigate its effects, specifically with respect to theasylum clause. By March 1906, the Secretary of State, Herbert Gladstone,issued a memorandum to the immigration officers who made portsidedecisions about individuals and the immigration boards charged with hearing

35. See Paul A. Kramer, “Empire against Exclusion in Early Twentieth CenturyTrans-Pacific History,” Nanzan Review of American Studies 33 (2011): 13–32. For labor,see Matthew Pratt Guterl and Christine Skwiot, “Atlantic and Pacific Crossings: Race,Empire, and the ‘Labor Problem’ in the Late Nineteenth Century,” Radical HistoryReview 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 Act1905, 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 andEthnicity in the Modern World, ed. Hilary Marland and Catherine Cox (Basingstoke:Palgrave Macmillan, 2013, 14–35).


appeals against those decisions. Upholding criticism that the boards wereruling beyond the law, he reinforced the original parliamentary intention:that only undesirable aliens should be excluded. It was never intended, heinstructed, that the provision should be enforced if “refusal of leave toland would involve great personal hardship or suffering in the case ofwomen 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 toland might expose him to cruel hardship. Again the statements of a manclaiming to be a political or religious refugee may be insufficient or inaccur-ate yet he may be exposed to serious risk from political causes if he is forcedto return.” Events in Russia had become critical in the preceding year. In rec-ognition of the “present disturbed condition of certain parts of theContinent,” Gladstone instructed that the benefit of the doubt “may begiven in favour of immigrants who allege that they are flying from religiousor political persecution in disturbed districts, and that in such cases leave toland may be given.”40

Historians tend to stress the exclusionary powers of the Aliens Act asforeshadowing 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 finallypassed, the Liberal government’s concern to minimize its exclusionarypowers in practice, are arguably as significant as the statute having beenpassed 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 entryof aliens is key to understanding an asylum clause that would otherwiseseem 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 itwas not only instrumental: there was a principle of free movement thatrequired defense. For many British parliamentarians, then, the introductionof 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 benefit of thedoubt be given: “the benefit of the doubt, where any doubt exists should be given in favourof 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 ahighly controversial step. It was considered “drastic” and “revolutionaryin 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 distinguishedBritish practice; even part of what constituted British “liberty.” Labour MPJohn Burns, for example, betrayed the nationalism at stake in defending theprinciple and practice of free movement, announcing in parliamentarydebate that “it was because this was the only civilised nation that didnot possess this kind of legislation that he was proud of being a Briton.”42

This had long been perceived as a “liberty” defined against continentalpractice, but in the context of the immigration laws emerging in so many ofthe British self-governing colonies and especially in the United States, thedefining 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 definingundesirable immigrants. Other jurisdictions legislating to restrict the freemovement initially of Chinese people—in all the Australian colonies,New Zealand, the United States, Canada, Natal, the Cape Colony, andNewfoundland—had fewer qualms about cutting across any principle ofinternational law that safeguarded the right to “free movement.”43

Ironically, perhaps, it was Chinese people themselves, rather more thanthe world’s “neo-Britons,” who articulated the right to free movementthat many in Westminster saw as a defining British characteristic.44

Related to this was the belief of many members of Parliament that therestriction and regulation of would-be immigrants fleeing persecutionundercut a strong traditional British self-story that their nation was, and

41. Asquith spoke in support of the bill, but nonetheless recognized its significance: “ThisBill, it must be conceded, is an entirely new departure in legislation, for it gives to an officerof 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 theCrown, provided he comes within certain categories.” “Aliens Bill,” The Times, April 261904, 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 Law12 (2011): 27–56.44. Marilyn Lake, “Chinese Colonists Assert Their ‘Common Human Rights’:

Cosmopolitanism as Subject and Method of History,” Journal of World History 21(2010): 375–92. See also L. Kong Meng, Cheok Hong Cheong, Louis Ah Mouy, eds.,The Chinese Question in Australia, 1878–79 (Melbourne: F.F. Bailliere, 1879).


should remain, a place of asylum and refuge from tyranny.45 Britain had along tradition of granting asylum to those fleeing political and religiousharms in a way that distinguished it from other countries.46 The noveltyin British practice was that it was, in principle, undiscriminating.Whereas European countries tended to offer asylum on a selective basis,dependent upon an individual’s nationality or political views, Britain intheory sheltered anyone, and loudly proclaimed its distinction in doingso. In appealing to this “precious heritage,” as Conservative PrimeMinister Arthur Balfour put it,47 both proponents and opponents of theAliens Bills and the Act were rehearsing an aspect of British national iden-tity that reached back centuries into a Protestant/Catholic past, but that wasraised over and over again during the politically tumultuous nineteenthcentury. It was political asylum most often referred to, although it wasunderstood that Britain had a longer history of granting asylum on religiousgrounds as well, in particular to continental Protestants, most famously theHuguenots.This was all part of British liberty, Sir Erskine May claimed in his

Constitutional History of England, written just after the passage of theAliens Act.

It has been a proud distinction for England to afford an inviolable asylum tomen 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 Flemishrefugees driven forth by the cruelties of Alva; to the Protestant refugees whofled from the persecutions of Louis XIV; and to the Catholic nobles and

45. See, for example, Lord Campbell’s invocation of the tradition of asylum in Britain inhis 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 aglory 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 attheir own will and pleasure, and that they cannot be disturbed by the Government of thiscountry 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 samemanner as native-born subjects,” cited in N.W. Sibley and Alfred Elias, The Aliens Act andthe Right of Asylum, Together with International Law, Comparative Jurisprudence, and theHistory of Legislation on the Subject, and an Exposition of the Act (London: WilliamClowes, 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 Émigrés and theLiberal International in the Post-Napoleonic Era (Oxford: Oxford University Press,2009). For an overview of British practice historically, see Stevens, UK Asylum Law andPolicy, ch. 1.47. Arthur Balfour, Hansard, Parliamentary Debates, House of Commons, July 19, 1905,

5th series, vol. 149, col. 1286.


priests who sought refuge from the bloody guillotine of revolutionary France.All exiles from their own country—whether they fled from despotism ordemocracy, whether they were kings discrowned, or humble citizens indanger—have looked to England as their home. Such refugees were safefrom the dangers which they had escaped. No solicitation or menace fromtheir own Government could disturb their right of asylum; and they wereequally free from molestation by the municipal laws of England.48

The provision of asylum was seen by many as an inviolable British traditionthat should be upheld at almost any cost. Winston Churchill, for example,opposed the Aliens Bills because he deplored any suggestion that Britainshould refuse entry to those fleeing persecution. In a letter to The Timesin 1904, he urged against forgetting “the old tolerant and generous practiceof free entry and asylum to which this country has so long adhered and fromwhich it has so greatly gained.” He appealed to a specifically English iden-tity derived from this apparently ancient practice, and provocatively invitedproponents of the Aliens Bill to argue otherwise. “I for one believe that they[English working men] will disavow an attempt to shut out the strangerfrom our land because he is poor or in trouble, and will resent a measurewhich without any proved necessity smirches those ancient traditions offreedom and hospitality for which Britain has been so long renowned.”49

Among the English working men mentioned by Churchill was theAnglo-Jewish community. In the context of the Aliens Bills, they, too,loudly proclaimed and mobilized the British tradition of asylum. TheJewish Board of Deputies was not opposed to immigration restriction assuch, 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 thefree—the asylum of the oppressed.”51 In one sermon, the ReverendS. 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 principlesupon which the fame as well as the prosperity of the Empire had been builtup.”52 It was with some political effect that the Jewish Chronicle

48. Sir Thomas Erskine May, The Constitutional History of England since the Accessionof 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 theBritish 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 Bill’s failure to include an asylum clause assimply “un-English.”53 This was a far more expedient charge than oneof “anti-Semitism,” which one might expect from the leadingAnglo-Jews. In fact, Jewish deputations did not just avoid anti-Semiticaccusations in these public debates, they also diplomatically defended poli-ticians against them. The charge of being “un-English” was a differentstory, however, and in the circumstances possibly more effective.

Drafting Asylum

One difficulty when it came to drafting the Aliens Bills was that this appar-ently cherished principle of asylum had functioned as traditional policyover 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 immigrationrestriction 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 1904and 1905, when a new set of Aliens Bills was introduced, it was less theprinciple of asylum per se that was most in question, than what effect analiens act would have on traditional, but uncodified, practice and policy;whether, therefore, the principle of granting asylum needed safeguardingby explicit codification, and, subsequently, whether religious grounds forrefuge 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, thenotion of “asylum” connoted “political asylum,” which was part of extra-dition law.55 This makes sense if one considers that previously, in theabsence of laws regulating the admission of aliens, it was only whenthey were threatened with removal—for example, when another staterequested their extradition—that any consideration of harm to which

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 separationof church and state was virtually completed and the church revealed as a purely voluntaryassociation of individuals of common creed for the purpose of common worship, religiouspersecution came to an end to make room for persecution on purely political grounds, begin-ning with the French Revolution, the Empire and the Restoration.” Elemér Balogh, “WorldPeace and the Refugee Problem,” Hague Academy of International Law Recueil des Cours75 (1949): 381.


they might be subjected on return became relevant. Accordingly, the clausethat was eventually to include religious persecution began as a clause thatdefined an extradition exception. “In the case of an immigrant who provesthat he is seeking admission to this country solely to avoid prosecution foran offence of a political character, leave to land shall not be refused on theground merely of want of means, or the probability of his becoming acharge on the rates.”56

The wording of this draft clause derived from the 1870 ExtraditionAct.57 Stretching the provision of political asylum to include recognitionof religious persecution became the key point of difference betweenLiberal and Conservative positions. As Stuart Samuel, MP, explained tothe Jewish community, “An asylum has invariably been afforded to thevictims of religious disability, to the great advantage of this country, andI 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 wouldadmit aliens fleeing to Britain “to avoid persecution involving danger ofimprisonment or danger to life or limb.”59 Although the Jewish communitythought 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 insome circumstances fall within this saving words, and others not.” Memorandum, draftresponses 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 towhich 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, orto the Secretary of State, that the requisition for his surrender has in fact been made with aview 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 debtorsseeking 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”: NormanMaclare Trenholme,The Right of Sanctuary in England: A Study inConstitutionalHistory (Univof Missicon, 1903), p. 26, referring to 3 Parl. Roll, 2 Rich. II., m. 51 a: “That neither in case ofdebt, account or single trespass was sanctuary demandable unless it involved injury to life andlimb.”


and Warsaw, for example, it imperfectly recognized the chronic as well asacute and violent nature of oppression in Russia. “A dramatic stroke ofmisfortune will entitle a man to enter, but slow torture does notcount.”60 It was then proposed to add “punishment on religious grounds,”but the Liberals, led by reformist Sir Charles Dilke, thought that tooweak.61 He proposed a clause that would provide for the admission ofan 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 onaccount of his religious beliefs or to avoid persecution involving danger ofimprisonment or of detention in or expulsion from his home on account ofhis religion.”62 Ultimately, it was Dilke’s wording that was included.Aliens were not to be excluded if fleeing “persecution, involving dangerof imprisonment or danger to life and limb, on account of religious belief.”If this were proven (by the immigrant), permission to land could not berefused.63

The Jewish Chronicle favorably reported Dilke’s interventions and thegovernment’s agreement: “There is something in this amendment beyondthe safety of the Jewish refugee. It enshrines a lofty principle and a greattradition. The reaffirmation of this principle by the British legislature inthe 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 fleeingpolitical and religious persecution. Of course, principle had not alwaysbeen matched by practice, as the Anglo-Jewish community knew betterthan most. Prime Minister Balfour tried from time to time to puncturethe nationalist talk, offering his own reality check on overblown Britishself-congratulation. He thought the honorable members of the House ofCommons might “put aside this fancy picture that from time immemorialthis country had been so much in favour of religious equality and the rightsof conscience that it gave an asylum to the religiously persecuted of allnations.”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, 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 andReligious 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. M.J. Landa, 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.


so powerful that he could not sustain such a position publicly without risk-ing political ground. He had to backtrack from such cynicism, and affirmedthat although his government was introducing an immigration restrictionstatute to exclude destitute aliens, he fully recognized the need for asylumfrom religious as well as political persecution. “We have heard a great dealof the possibility of Jews and others . . . coming to this country in an absol-utely destitute condition, and being rejected, under this Bill, from ourshores, although they were flying from religious or political persecution.Nobody desires that such a contingency should occur.”66

Even the proponents of immigration restriction, then, had to concede thepower of asylum for British, or perhaps more specifically English,self-definition.67

To some considerable extent, however, Balfour was dissembling andsimply pandering to a British chauvinism. The asylum clause was notnecessarily the progressive humanitarian measure it might seem. Itsdouble-edged effect was evident in one of Balfour’s justifications of it. Itis important to recognize that it was almost impossible for him to introduceand successfully defend an Aliens Bill without some recognition of, andexpression of loyalty to, the British tradition of asylum. This alreadytells us a lot. “We have been accused on this side of the House of havingunduly desired to restrict that hospitality which has for generations beenextended 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, andwhatever be their social status. For my own part, I altogether repudiate thatview.”68 But that was just the preface to his real message. Balfour struck atwhat was for him core business: the clause functioned to ensure asylum forthose who deserved it, and to filter out the undeserving: the “undesirables.”“It must be remembered that hospitality, although a virtue, is not obligatoryeither 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 degreedesirable that it should not be abused.”69

This begins to sound more like the arguments of the late twentieth andearly twenty-first centuries, and was in practice the work of the port

66. Landa, The Alien Problem, 264, referring to Hansard, Parliamentary Debates, Houseof 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 toexclude 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. 1282.69. Ibid.


immigration officers and the immigration boards that heard appeals againstdecisions denying entry. Balfour reflected the position in international law:no state could be compelled to admit a foreigner to its territory, although ifit chose to grant asylum, then it could not be compelled to surrender thatperson.70 As such, Balfour’s statement was perhaps designed to highlightjust how generous Britain was in including a provision of this kind: onethat must therefore be shielded from abuse. Despite his disinclination toinclude an asylum clause, Balfour was so bold as to frame the bill in itsfinal reading as a measure that would ensure that the great British traditionof hospitality would remain protected against those who would abuse it. Inhis 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 Britain’s “precious heritage.”71

There was much to what Balfour said, for better or worse, as the clausewas, in one view, a reversal of prior British practice on asylum.72 TheHome Office Permanent Under-Secretary himself argued that it “involve[d]the reversal of our policy for the last two hundred years as to the right ofasylum and the law of extradition.”73 He was also deeply worried abouthow this provision could possibly be implemented with no pre-existingadministrative 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 freeentry of those seeking refuge, which had been the traditional position inBritain (when borders were not controlled). Previously, those in need ofprotection could enter the territory and remain without having to justifytheir 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, 330.71. 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 Jill Pellew, “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 toAuthorise for One Year, and to the End of the Then Next Session of Parliament, theRemoval of Aliens from the Realm 1848 (11 & 12 Vict. c. 20) (although not implementedagainst anyone). Porter, The Refugee Question, 218.


This is an interpretation that sits comfortably with the restrictive natureof the Act so well traversed in other accounts of the legislation. Whenscholars have noted the asylum clause, it typically has been assessed asa retrograde move away from a broad freedom of entry, and ananti-Semitic one at that.77 For these reasons, some commentators at thetime and several historians since have been disinclined to grant theclause the significance that it would seem to warrant. However, manyearly twentieth century commentators thought otherwise. Some consideredthat the Act gave far greater certainty to people at risk of persecution.The Jewish journalist J.M. Landa, for example, described the asylumclause as a “precious safeguard which consecrates by legislation a nobletradition,” while objecting to the Act as a whole.78 This is preciselywhat worried some anti-immigrationists about the law at the time; indefining those to be selected out and refused permission to land, by thesame stroke it selected everyone else in. “Has any alien, not undesirablein the sense of the Act,” asked one worried author in The JuridicalReview, “now a right of entry to our jurisdiction”?79 Some legal scholarswent so far as to say that the Aliens Act conferred an individual right ofasylum 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, twoBritish barristers with specialist interest in international law, joined forcesto assess its significance.81 It was not the exclusion of would-be immi-grants on which they focused, but rather this newly codified right of asy-lum. They deemed the Act “the most comprehensive declaration of theright 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 civilizedworld.” They located the antecedents of the Act’s asylum provision in

77. Marrus, The Unwanted; See also Elina Multanen, “British Policy Towards RussianRefugees 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 Frederick Edwin Smith Birkenhead, InternationalLaw as Interpreted During the Russo-Japanese War (Boston: Boston Book, 1905).


international law, but regarded its statutory expression as “declar[ing] theRight of Asylum even more fully than International Law.”82

Tracing the principle of asylum through the classical international legalscholarship of Vitoria, Pufendorf, Vattel, and Grotius, Sibley and Eliasexamined its nature. They said that the right to asylum

cannot be put on the footing of an absolute or unconditional right. Vattelintroduces two limitations of the right, one arising from the necessities ofthe State whose shelter is sought, the other from the character of thoseclaiming the right of asylum. Persons who violate all public security, anddeclare themselves the enemies of the human race, not merely cannotclaim the right, but must be punished wherever they are seized, thoughthat should be out of the territory of the State against whose laws theyhave 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 forintroducing Aliens Bills in the late 1890s. Anarchy was not consideredto be a political offence, and it had been ruled that anarchists could notbenefit from protection.84 They were, in essence, Vattel’s “enemies ofthe human race.” Indeed, the UDHR and modern international lawreflect this position, containing an exception to asylum for “prosecutionsgenuinely arising from non-political crimes or from acts contrary to thepurposes and principles of the United Nations.”85

Grotius, writing more than a century before Vattel, had expressed a moreliberal 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 describedasylum as being “for the benefit of those who suffer from undeservedenmity, 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 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 slightreasons, 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 Eugène Pépin, L’Aliens Act de 1905, Causes et Résultats (Librairie Nouvelle deDroit et de Jurisprudence, Paris, 1913), 253, referring to the Meunier case (1894) 2 QB415, 419; see also Paul Knepper, “The Other Invisible Hand: Jews and Anarchists inLondon 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.


society or to other men.”87 He also wrote that “[a] permanent residenceought not to be denied to foreigners who, expelled from their homes, areseeking a refuge, provided that they submit themselves to the establishedgovernment and observe any regulations which are necessary to avoidstrifes,” and provided they had not committed offences affecting publicorder or crimes against another sovereign.88 Pufendorf’s later analysis,however, found that it was a matter of state discretion whether alienswere to be admitted. He recognized an exception for those driven “bynecessity or by any cause that deserves pity or compassion.”89 But that dis-cretion, he thought, could justifiably be an expedient one. A state mightoffer refuge to “a small number of men expelled from their home, notfor their demerits or crime,” particularly if they were “industrious orwealthy, and will disturb neither our religious faith nor our institutions.”90

Sibley and Elias also analyzed the Aliens Act in the context of Britishlaw on immigration and asylum. Britain had made previous attempts atimmigration law in the context of political insecurity and war, but nonehad explicitly nominated the categories of persons to be excluded, orincluded. The Aliens Act 1793 had established “regulations respectingaliens arriving in this kingdom, or resident therein, in certain cases.”91

That statute was crafted in a context of the influx of émigrés from theFrench Revolution.92 Its purpose was selectively to permit entry, and theCrown was empowered to regulate the landing, residence, and expulsionof 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 denWijngaert argues that this went beyond political offences to incorporate a more modernnotion of “humanitarian asylum”: Christine Van den Wijngaert, The Political OffenceException to Extradition: The Delicate Problem of Balancing the Rights of the Individualand 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 otherrestrictive measures, as the state had an obligation to prevent individuals from endangeringthe 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, 18–19; May, Constitutional History of England,

157–58.93. H.S.Q. Henriques, The Law of Aliens and Naturalization including the Text of the

Aliens Act, 1905 (London: Butterworth and Co., 1906), 11–12.


justified only “by the extraordinary exigency of the times,” and was“wholly inconsistent with the free and liberal spirit” entertained up untilthat time of revolution and war.94 Asylum seekers and refugees were notmentioned, as it was presumed by convention that they could and wouldenter. But a broad discretion in section VII empowered the King by procla-mation or order in council to refuse permission to land to “Aliens ofany Description” if this were considered “necessary for the Safety orTranquillity of the Kingdom.”95

Five years later, in 1798, an Act for Establishing Regulations RespectingAliens was adopted. It instituted a requirement that aliens register andobtain a license to reside in Britain. This stemmed from concerns thatthe institution of asylum might be abused “by Persons coming to thisKingdom for Purposes dangerous to the Interests and Safety thereof.”96

Although the Act has been described as “a significant advance in recognis-ing the importance of the principle of asylum,”97 the principle itself wasnot binding. Appearing in the preamble, it simply framed the statute’sobject and purpose. With peace after the Napoleonic Wars, the 1793 and1798 Acts were repealed and replaced by the 1836 Act for theRegistration 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 stateto bestow, rather than a right of the individual to claim. The first edition ofOppenheim’s classic treatise on international law, published in 1905shortly before the Act’s passage, summarized that position:

States have always upheld their competence to grant asylum if they choose todo so. Now the so-called right of asylum is certainly not a right of theforeigner to demand that the State into whose territory he has entered withthe 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 ofasylum is nothing but the competence mentioned above of every State, andinferred from its territorial supremacy, to allow a prosecuted foreigner toenter and to remain on its territory under its protection, and to grant therebyan asylum to him.98

94. May, Constitutional History of England, 284. Porter similarly emphasized the statute’sexceptionality, noting that in “‘normal’ times it was not thought proper that governmentsshould have any powers at all to exclude or expel aliens.” See Porter, The RefugeeQuestion, 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 significance of the Aliens Act, then, for commentators such asSibley and Elias, was its inclusion of an individual’s right to asylum.They were not alone in noting this. Eugène Pépin, who was to become a

leading international law scholar, observed significant differences betweenthe British and continental approaches in his book L’Aliens Act de 1905:Causes et Résultats.99 In Pépin’s view, the British approach to grantingasylum stemmed from a historically based Protestant nationalism: “ledroit d’asile est une règle traditionnelle d’Angleterre; on le trouve à toutesles époques de son histoire.”100 By contrast, on the continent, the predomi-nant approach was that individuals had no right to be granted asylum, butrather the state had a right to confer if it so wished.United States legal scholars also noted the Act’s 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 hadbecome across multiple jurisdictions.101 The right of asylum, however,excited particular interest. In the Digest of International Law, Columbiaprofessor John Bassett Moore, later a judge of the Permanent Court ofInternational Justice, commented that: “No legal term in common use isperhaps so lacking in uniformity and accuracy of definition as the ‘rightof asylum’.”102 The British Aliens Act now provided one definition, henoted. James Brown Scott, editor of the American Journal ofInternational Law, concurred that the right of asylum thus defined was

Bill, respectively) could exclude particular persons from entering the territory: para. 314. In1900 the German Reichsgericht stated that “[t]he accordance or refusal of asylum is a rightof the state to which the fugitive has fled. The fugitive has no claim to it”: Entscheidungendes Reichsgerichts in Strafsachen 33 (1900): 99, cited in Morgenstern, “The Right ofAsylum,” 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 pour-ront s’imposer au pays, dans lequel ils sont venus s’établir; ce serait contraire à toutes lesnotions 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 oubliernon plus que ce pays a aussi des obligations internationales et que celles-ci ne doiventpas 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 andcommentary, TNA HO 45/10062/B238.102. John Bassett Moore, A Digest of International Law, vol. II (Washington, DC:

Government Printing Office, 1906), para. 291.


novel, adding that it was as “wise as it is humane.”103 The equivalentUnited States statute—the 1882 Act to Regulate Immigration—was anattempt to restrict the entry of paupers, contract laborers, and criminals.It was deemed by another United States commentator to be “rigid andinelastic,” 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 theground of want of means persons flying from persecution on religious orpolitical grounds in certain cases.”105

Sibley and Elias also drew comparisons between the United States andBritish immigration statutes. They considered that despite their otherwise“implicitly identical” scope and purpose, aimed “not at the alien, but at theundesirable alien immigrant,”106 there was one major difference. Whereassection 4 of the United States legislation essentially codified the “politicaloffence exception” in extradition law,107 section 1(3) of the Aliens Actarticulated a broader right to asylum that applied not just to criminals, butto 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 claimthe right in the two cases. The Act of Congress merely confers the benefit ofthe Right of Asylum to “foreign convicts who have been convicted ofpolitical offences.” This involves a far more restricted construction of theRight of Asylum than that found in the Aliens Act, by which the Right ofAsylum is conferred on persons seeking admission into this country eitherto avoid “prosecution or punishment” for a political offence or on religiousgrounds. And further, the Right of Asylum is conferred by the Act ofParliament on persons seeking admission into this country in order toavoid “religious persecution.” The Act of Congress is entirely silent on thislast 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 ofInternational 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 toRegulate Immigration 1882, Session I, Ch. 376, s. (4).108. Sibley and Elias, The Aliens Act and the Right of Asylum, 25–26.


The Bifurcation of Asylum: Extradition Law and Refugee Law

Protection from surrender for political offenses (the “political offenseexception”) was already an established part of extradition law. By contrast,protection from removal to persecution grew out of the political offenseexception but developed as refugee law, and over time came to be houseddomestically within immigration statutes. This bifurcation was the Act’sfirst point of novelty (after the inclusion of the asylum clause itself), andas 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 invasionand pursuit. By virtue of its long history, hospitality and protectioncame to be regarded as the fugitive’s privilege, and with the formationof nation states, states themselves became refuges for offenders againstthe laws of other nations. Thus, “asylum” historically was understood asfugitives’ right to protection from pursuit by the entity from which theyhad fled. This understanding of full hospitality eventually abated, however,as states started to assert their right to extradite offenders within theirjurisdiction.However, as states sought to remove criminals from their territories,

another exception developed: persons wanted for purely political offenseswould not be expelled. The “political offense exception” to surrender inextradition law became synonymous with “asylum,”109 and those protectedfrom removal were commonly described as “political refugees.”110 By1905, 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 nolegal duty to surrender a fugitive at all. Grotius believed that there was such a duty, but statepractice has not followed this view: Morgenstern, “The Right of Asylum,” 327–28.Morgenstern writes: “The necessity for extradition treaties is a recognition of the competenceto grant asylum.” Ibid., 328. On extradition law generally, see Moore, Digest ofInternational Law, vol 1. para. 5. The Belgian Loi sur les extraditions, No. 1195 ofOctober 1, 1833, was the first statute to codify the exception, and it came to serve as anexemplar 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; forexample, Oxford (1880), Lausanne (1888), Geneva (1892), and Paris (1894), in JamesBrown Scott, Resolutions of the Institute of International Law dealing with the Law ofNations (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 lawsregulating the admission of foreigners. As Price has explained, “[i]n aworld of open borders, asylum was needed only by those facing extradi-tion; other persecuted people were admitted as migrants.”112 Given therelatively free movement of persons across Europe until the outbreak ofWorld War I,113 consideration of protection needs at the point of entryrarely arose.114 In juridical terms, then, the need for asylum was only rel-evant if another state requested an individual’s return.But as states began to assert greater control over their borders and to

refuse admission to “undesirables,” assessing whether a person was inneed of asylum became relevant at the point of entry as well. Thus, asimmigration laws were codified, the notion of asylum began to encompassother persecuted people as well, expanding “from an element of inter-national criminal law (a defense to extradition) to a subset of immigrationpolicy (a defense to deportation).”115 The novelty of the 1882 Immigration

111. It also exists in another form—diplomatic asylum—which describes the practice ofsome 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 formingpart 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 thestory, the question of extradition and asylum also needs integration into histories of borderregulation. See Nancy L. Green, “The Politics of Exit: Reversing the ImmigrationParadigm,” Journal of Modern History 77 (2005): 263–89.113. 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 toReturn: Papers and Recommendations of the International Colloquium held in Uppsala,Sweden, 19–20 June 1972, ed. Karel Vasak and Sidney Liskofsky (N.p.: The AmericanJewish Committee, 1976) 6; and McAdam, “An Intellectual History of Freedom ofMovement 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 vesselsprovide Customs with a list of all aliens aboard, there was no power to exclude or deport, orto record the subsequent movement of aliens upon arrival. Furthermore, by the 1880s, theAct and its processes were virtually unused, such that when immigration became a politicalissue in that decade, few members of Parliament were even aware of the existence of the1836 Act. See also Pellew, “The Home Office 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]oliticaloffence is one small part of the wider topic of asylum”: International Law and theMovement of Persons, 142. Van den Wijngaert, Political Offence Exception, 18, has statedthat 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 inimmigration law for the first time, as an exception to exclusion fromentry. Yet significantly, the British 1905 Aliens Act broadened this protec-tion even further. Not only did it provide for admission for those at risk ofpolitical prosecution (whose removal was already precluded by theExtradition Act 1870), but it also encompassed those at risk of persecutionfor religious reasons.116 As such, it was a turning point in the evolution ofrefugee law. It essentially introduced a “refugee” category into domesticimmigration law, which was distinct from the traditional extradition lawpolitical offense exception.117 Whereas this was to become standard prac-tice in the second half of the twentieth century, it was highly unusual forthis period.118

The Aliens Act’s second point of novelty is related closely to the first: itsinclusion of “persecution” as a basis for admission. It was another fortyyears before that term would appear in an international refugee instrument(the constitution of the International Refugee Organization (IRO)).Moreover—and the third point of novelty—the Act marked the start of anominated approach to identifying protection needs (here on the basis ofpolitical opinion and religion), foreshadowing later developments in inter-national refugee law.119 Commentators at the time described the Act’sinclusion of religious persecution as unique,120 and to our knowledge, it

exception in extradition law. The latter applies to those who have actively committed acrime; 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, InternationalExtradition and World Public Order (Leyden: AW Sijthoff, 1974), 107. The Aliens Actthus expanded “to apply to deportation and similar measures . . . a similar protection inrelation to political offences as is provided in extradition: see Ivan A. Shearer, Extraditionin 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 ImmigrationBoards, 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 EuropeanStates contain[ed] the slightest allusion to the subject” of the right of asylum: Sibley andElias, 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 reli-gieux, c’est-à-dire aux personnes fuyant des poursuites ou des peines motivées par descroyances religieuses, ou des pérsecutions contre ces croyances.”


was the first English-language statute to list persecution on religiousgrounds as a basis for admission. At least since the Edict of Potsdam in1685,121 no other domestic law had contained a similar provision.122

Interestingly, the United States Immigration Act of 1917, enacted justover a decade after the 1905 Aliens Act, also referred to “religiouspersecution.” That Act regulated the immigration of aliens into theUnited States by listing categories of aliens excluded from admission(just as the British statute did). “Illiterates” were one such excludedgroup. To determine whether or not someone was illiterate, all personsover the age of sixteen who were physically capable of reading wererequired to undergo a literacy test (in a language selected by the prospec-tive immigrant). However, the Act exempted from the literacy test personsable to prove that they were seeking entry “to avoid religious persecution inthe country of their last permanent residence, whether such persecution beevidenced by overt acts or by laws or governmental regulations that dis-criminate against the alien or the race to which he belongs because ofhis religious faith.” It also exempted “persons convicted, or who admitthe commission, or who teach or advocate the commission, of an offensepurely political.”123 In the sidebar annotations to the Act, these groupswere described respectively as “religious refugees” and “politicaloffenders.”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 thatthe United States never pursued an open door policy to immigration, incontrast to Britain prior to 1905. Like the British statute, the later UnitedStates Act reflected the bifurcation of asylum into its refugee law and extra-dition law components.

121. For an overview, see Stevens, UK Asylum Law and Policy, 6–14. Article 120 of theFrench Jacobean Constitution of 1793 declared that the French people “donne asile auxétrangers bannis de leurs pays pour la cause de la liberté. Il le refuse aux tyrans!” but theconception here is of political freedom fighters, not people persecuted for their religiousbeliefs. 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 F. de Martens, Traité du Droit International (Paris: Librairie Marescq Aine,1883), 1: 449. The only other related example is that of the United States’s 1917Immigration Act, discussed below. There was no reference to religious persecution in thenational 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.


A Retreat from Asylum

Britain’s generous approach to asylum was short-lived, however.124 Itscodified individual right to asylum functioned formally from 1906 to1914. Britain then beat a hasty retreat, albeit initially in the extraordinary cir-cumstances of war. The asylum clause was removed from the 1914 and 1919aliens statutes,125 which reverted to the political security tradition of alienlaws, reminiscent of the 1793 Act, focusing on the exclusion of “enemyaliens” from British territory and their treatment within British territory.126

Although the 1914 Act did not explicitly protect refugees, some scholarshave argued that protection continued to be granted throughout the war toArmenian refugees from Ottoman persecution and, after invasion, to numer-ous Belgian refugees.127 In R v Secretary of State for Home Affairs, ex parteChateau-Thierry, it was stated that the Attorney-General had claimed he had“no intention of enforcing the provisions of the Act of 1914 against suchrefugees.”128 The court noted the “marked contrast” between the languageof the 1905 Act and that of the 1914 Act, acknowledging the latter’s widediscretionary 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, SirWilliam Joynson Hicks, denied that political fugitives were refused admis-sion to Britain, although he did admit that political refugees were excludedif they were “undesirable in other respects.”130 In 1929, the Home

124. The United States’ approach to asylum was similarly short-lived, as the ImmigrationAct of 1924 dispensed with such a provision: see David W. Engstrom, Presidential DecisionMaking Adrift: The Carter Administration and the Mariel Boatlift (Rowman and LittlefieldPublishers, 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 thatthe Act would not be enforced against political refugees. See Morgenstern, “The Right ofAsylum,” 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 1962and 1968”: Steve Cohen, No One is Illegal: Asylum and Immigration Control Past andPresent (Stoke on Trent: Trentham Books, 2003), 114 (fn. omitted). However, even thoughrefugee 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, JohnBull’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.


Secretary, John Clynes, remarked in relation to the exclusion of LeonTrotsky that: “No alien has the right to claim admission to this country ifit would be contrary to the interests of the country to receive him.”131 Thisrecalled Vattel’s “enemies” and the exclusion of late-nineteenth centuryanarchists from protection. Perhaps most significantly, of the eight partiesto the 1933 Refugee Convention, the United Kingdom was the only one toreject article 3(2) (the first non-refoulement provision), which providedthat each contracting party “undertakes in any case not to refuse entry to refu-gees at the frontiers of their countries of origin.”132 TheUnited Kingdomdel-egate subsequently told the Intergovernmental Advisory Committee onRefugees that: “His Majesty’s Government must reserve the right to refuseadmission to the United Kingdom to any alien, whether or not he comeswithin 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 begranted asylum. This retreat was to continue. And yet the narrative aboutthe development of the refugee definition in international law is customa-rily traced to the first international refugee instruments developed by theLeague of Nations and subsequent organizations. The interwar years areoften pinpointed as the decades in which refugee law made great strides.The periodization offered by one leading refugee law scholar, JamesHathaway, has been particularly influential in this respect. Althoughacknowledging the long history of asylum in state practice, and in fact lim-iting his study to the “evolution of refugee status in international law:1920–1950,” his typology for analyzing this period has reinforced the ideathat “persecution” did not emerge as a defining feature of the refugee until1938.134 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): 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, Robert J Beck, “Britain and the 1933Refugee Convention: National or State Sovereignty?” International Journal of RefugeeLaw 11 (1999): 615: “From the Home Office’s standpoint, refugees were merely anothergroup 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 first time “persecution” was included

as a formal criterion of an international law refugee definition was in the 1946 IROConstitution. Hathaway characterizes refugee law as spanning three periods: the juridical(1920–35, when refugees were defined by their lack of formal diplomatic protection); the


Committee on Refugees in 1938 as “innovative” because of its focus onpersonalized grounds for refugee status—“political opinions, religiousbeliefs or racial origin”—rather than on a general absence of protection(as in the earlier League instruments).135 He explained that “[t]he essenceof refugee status came to be discord between the individual refugee appli-cant’s personal characteristics and convictions and the tenets of the politi-cal system in her country of origin.”136 Elsewhere, he stated that “[t]hemove to a more individuated conception of refugeehood signalled theshift from a refugee law based on general humanitarian concern to provideen bloc protection, to a more selective focus on assisting persons whosebasic human rights were jeopardized.”137 This is the case if the conceptionof refugee is considered to be produced solely in and by international law.However, the need to incorporate domestic law into this history issuggested by the 1905 Aliens Act, which itself drew on—and extended—international law principles. As the preceding analysis of the AliensAct shows, developments in the 1930s did not herald a new conceptualiz-ation of protection, but rather a return to the kind of considerations withwhich the British government had been concerned at the beginning ofthe century. Whereas Hathaway regards the progressive international devel-opments as a scaling up of protection, from a different viewpoint they canbe seen as a scaling down.The League of Nations refugee instruments drafted between 1922 and

1939 were not designed to define the socio-legal phenomenon of the “refu-gee” in any comprehensive manner, nor to provide for a general right toasylum. Rather, they carved out particular classes of beneficiaries forLeague assistance: for identity documents, funding, and so on. Theywere “technical definitions used for legal and administrative purposes,”

social (1935–39, when refugees were seen as “helpless casualties of broad-based social orpolitical occurrences”); and the individual (1938–50, when refugees were perceived asthose escaping injustice or a fundamental incompatibility with the home state): seeHathaway, “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 to1920, “there was little concern to delimit the scope of the refugee definition,” and “thereign of liberalism . . . led most European powers to permit essentially uncontrolled andunrestricted migration.” This free movement “came to an abrupt halt after the First WorldWar,” and governments began to adopt “more guarded approaches to immigration in generaland 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 Theywere 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 definitions, based on an individual’s nationality or

ethnicity, are today typically contrasted to the concept of the refugee assomeone fleeing “persecution,” which characterizes the 1951 RefugeeConvention. 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 fromGermany, and was rephrased in the 1946 IRO Constitution and sub-sequently the 1951 Refugee Convention.141 The received narrative—thatinternational instruments developed in the 1920s, that the concept of per-secution appeared in the 1930s and 1940s, and that this all progressed tothe 1951 Convention—is valid on a narrow view of just where and howinternational “refugee” law emerged. Another view is that these decadeswere 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 thesedecades was to question the principle of an individual’s right to asylum—

based on persecution or any other grounds—not to bolster it. This was thecase both in its domestic asylum and immigration laws (taking the AliensAct 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 tocast 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 Sjöberg, The Powers and the Persecuted: TheRefugee Problem and the Intergovernmental Committee on Refugees (Lund: LundUniversity Press, 1991), 37.140. See discussion in Price, Rethinking Asylum, 24–25; Gervase Coles, “Approaching the

Refugee Problem Today,” in Refugees and International Relations, ed. Gil Loescher andLaila Monahan (New York: Oxford University Press, 1989), 374–75; and Astri Suhrke,“Global Refugee Movements and Strategies of Response,” in US Immigration andRefugee Policy: Global and Domestic Issues, ed. Mary M. Kritz (Lexington: LexingtonBooks, 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 ofRefugee 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, whichwas convened to manage the international response to another wave ofanti-Semitic domestic laws in continental Europe. The British delegate,Lord Winterton, predictably invoked the long British tradition of asylumthat briefly had been rendered an individual right by the Aliens Act, butby this point, the British commitment to asylum that had been so stronglydefended in the discussion around the 1905 Act no longer had the samepurchase. 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 leavetheir own countries,” contemporary “economic and social reasons”meant that “the traditional policy of granting asylum can only be appliedwithin narrow limits.”143 In the post-Depression context he was, in asense, again claiming Vattel’s limitation on asylum that took into accountthe situation of the host country, a limit that had been noted by Sibley andElias early in the century.144

Therefore, by the time Sir John Hope Simpson, who authored a numberof 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 notbe said that individual refugees had a “right” of asylum. Rather, asylumwas “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 ofa person for a purely political offence.”145 In the same year, refugee histor-ian Louise Holborn, herself having fled 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) inProceedings of the Intergovernmental Committee: Verbatim Record of the PlenaryMeetings of the Committee, Resolutions and Reports (Evian, July 6–15, 1938), 14 (empha-sis 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,” 121stMeeting (November 3, 1948), UN Doc. SR.121, 337 (Mr. Shahi, Pakistan); UN Economicand social Council (ECOSOC), Commission on Human Rights, Second Session, SummaryRecord 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 theimmediate relief of vast numbers of refugees, even though they cannotclaim it as a right.”146

From a legal perspective, there is nothing startling about these assess-ments; they simply reflected the position at international law. However,they highlight just how idiosyncratic the asylum clause in the 1905 AliensAct was. Rather than asylum being a prerogative of the executive arm ofgovernment, 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 stockof the codified right to asylum. In doing so, some looked back to the 1905Aliens Act. Felice Morgenstern, who was to go on to prepare a definitiveaccount of the drafting of the UDHR, was one who did so. In 1949, shedescribed the Act as an early instance of waiving the application of immi-gration law by “explicitly exempt[ing] political and religious refugees fromthe main excluding provisions.”148 And she also saw that some 45 yearsafter its own commitment to an individual’s right to asylum, aBritish-driven amendment to the draft UDHR undid any such right, atleast from the perspective of the individual. In her view, it made theright of asylum “meaningless.”149 How did this come about? What wasthe “afterlife,” in international law, of an individual right to asylum thatthe Aliens Act briefly had codified 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 thefirst 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 wasresponsible for the first draft, reflected 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, 1920–1938,” AmericanJournal 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. 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 powerunder international law to refuse to allow foreigners to enter their terri-tories,” pointing out that his draft acknowledged this by simply reiteratingthe existing position in international law: “Every State shall have the rightto grant asylum to political refugees.”151 This effectively “sidetracked theissue” as to whether an individual right of asylum existed.152

During the drafting negotiations, there was fierce debate between thestates that felt strongly that a declaration of human rights ought to providefor an individual right to be granted asylum, and those that believed thatthe instrument should reflect merely a right to seek asylum, leaving it tothe discretion of states to grant it. The draft texts oscillated betweenthese two positions. British delegates involved in the drafting processsquarely based their interventions on the traditional international law pos-ition: that asylum was a prerogative of the state to bestow, and not a rightof 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 oneshall have the right to seek and be granted asylum from persecution. Thisright will not be accorded to criminals nor to those whose acts are contraryto the principles and aims of the United Nations.”153 Significantly, givenBritain’s legislative history, the United Kingdom delegate raised strenuousobjections to the words “and be granted asylum.” He argued that somecountries might not be able to absorb large numbers of refugees, andthat “the State should have the right, for any reason considered right andproper, 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, butthis was rejected.155

151. ECOSOC, Commission on Human Rights, First Session, Report of the DraftingCommittee 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 HumanRights, Drafting Committee, First Session, Summary Record of the Fourth Meeting, UNDoc 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), 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.


The United Kingdom delegation then proposed an alternative text:“Everyone shall have the right to seek and may be granted asylum frompolitical, racial and religious persecution.”156 It sought to frame thisreconfiguration of the asylum provision within an overarching concernthat the UDHR “should be throughout in declaratory and not in mandatoryform,” which would align better with its purpose as “a statement ofideals.”157 France proposed removing the express reference to a right tobe granted asylum, but suggested adding “[t]he United Nations is boundto secure them such asylum,”158 which in effect amounted to a similarguarantee. The United States proposed modifying the wording to suggestonly 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 tobeing granted asylum, it was now phrased as permissive, rather than obli-gatory: “Everyone shall have the right to seek and may be granted asylumfrom persecution. The United Nations is bound to secure this asylum inagreement with Member States. Prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of theUnited 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 Shedescribed the right to asylum from persecution as “the natural corollaryto the right to hold or change one’s beliefs,” which was mentioned several

156. ECOSOC, Commission on Human Rights, Third Session, Comments fromGovernments on the Draft International Declaration on Human Rights, Draft InternationalCovenant on Human Rights and the Question of Implementation: Communication receivedfrom the United Kingdom, UN Doc. E/CN.4/82/Add.9 (May 10, 1948), 5. See, also, theAustralian 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 InternationalCovenant on Human Rights and the Question of Implementation: communication receivedfrom 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 InternationalCovenant on Human Rights, and Methods of Implementation: communication receivedfrom 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 JewishCongress 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, “refugeeswere not asking for permanent homes but for temporary safety from perse-cution.” Given that governments such as the United Kingdom, UnitedStates, France, and the Union of Soviet Socialist Republics had showngenerosity in sheltering many Jewish refugees before and during WorldWar II, “it was difficult to believe that their representatives in theCommission would oppose the inclusion of the right to asylum.”163 Toaddress the concerns of the United Kingdom and France, he proposedamending wording to the provision to the effect that states were obliged“to secure the right to asylum and that the limitations of that obligationwould be laid down in conventions established under the auspices of theUnited Nations.”164 Noting that the right “had been observed in Europein the Middle Ages and was being observed now in the Mohammedancountries,” he asserted that: “The Bill of Human Rights would mean littleto those who most eagerly awaited it, if the right to asylum, in principle,was not included.”165 After considerable debate, and, according to politicaltheorist Johannes Morsink, as a result of non-governmental organizationinterventions by the American Federation of Labor and the WorldJewish Congress,166 delegates voted on and accepted the re-inclusion ofobligatory language: “Everyone has the right to seek and be granted inother countries asylum from persecution.”167

A number of states proposed amendments to this text.168 These can bedivided broadly into states that sought to finesse169 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 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, SaudiArabia, 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 withstates to secure asylum for individuals. The Dutch delegate noted that in some circumstancesa 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 theextent 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).


(for example to include asylum in embassies),170 and those that wanted toremove 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 Committeein the General Assembly. Mrs. Corbet, the United Kingdom delegate,framed the argument in terms of the state’s sovereign right to determinewho entered its territory, noting that any provision that compelled a stateto confer asylum on an individual would be contrary to “almost all existingimmigration laws.”172

A measure of how considerably the British position had retreated sincethe adoption of the 1905 Aliens Act is apparent in this summary of theThird Committee debate:

The Government of the United Kingdom was ready to guarantee that anypersecuted person asking it for refuge would be treated with sympathy. Butno State could accept the responsibility imposed by article 12 [now article14 of the UDHR]. The United Kingdom had often had occasion to offer asy-lum to political refugees, notably to Garibaldi, Mazzini, Kossuth, Marx andLenin, but it had not done so under obligation. It had always made use of itsright to admit any particular person, and intended to continue to do so in thefuture.

Mrs. Corbet thought that the basic text of article 12 was closely linked toimmigration laws, inasmuch as it gave any person or group of persons perse-cuted for political or other reasons the right to demand admission into thecountry of their choice. Such was not the intention of article 12; nevertheless,the United Kingdom delegation thought its adoption impossible, as noforeigner could claim the right of entry into any State unless that rightwere granted by treaty.173

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 theyrestricted 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).


For Britain, the “right of asylum” now meant simply “the right of everyState to offer refuge and to resist all demands for extradition” (encompassedby the notion “to enjoy ... asylum” contained in the British-proposed amend-ment).174 The British conception of the right to seek and to enjoy asylumwas a compromise between the right of the state to control admission toits territory, and the protection of persecuted persons.175 Although Britainagreed “not to grant to a person fleeing persecution the right to enter anyand every country,” it would “ensure for him the enjoyment of the rightto 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 voteon the basis that the wording “unduly weakened the article” because thepersecuted 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 thedeclaration to contain an article dealing with the right of asylum.”179

Accordingly, the final provision read: “Everyone has the right to seekand to enjoy in other countries asylum from persecution.”180

Writing in 1948, Hersch Lauterpacht, the Whewell Professor ofInternational Law at Cambridge, dismissed the provision as “an ambiguousplay of words.”181 He regarded its formulation as “artificial to the point offlippancy” because it did nothing more than restate states’ longstanding and“indisputable” right under international law to “offer refuge and to resist alldemands for extradition.”182 Lauterpacht regarded it as “couched in alanguage 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., 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 toone, 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 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 YearBook 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.


of international instruments in which an ingenious and deceptive form ofwords serves the purpose of concealing the determination of States to retainfull freedom of action.” Reflecting on the drafting process, he observed thatfar from entrenching any legal obligation, “there was no intention toassume even a moral obligation to grant asylum”; in fact, “[t]here wasan explicit disclaimer of any such intention.”183

Britain’s retreat from its position at the start of the century, and theacceptance by other states that “asylum” was something that an individualwas entitled to seek and enjoy, but not necessarily be granted, wasundoubtedly influenced by contemporary political events. The 1948Arab–Israeli war had uprooted many thousands of people and was ragingwhile the Third Committee was deliberating on the content of the asylumprovision. In one scholar’s view, this “explains why the teeth were takenout of the article.”184 Viewing this within a longer historical trajectory, itbecomes clear that two major exoduses, circa 1900 and 1948, intersectedin important respects with formulations of asylum in both internationaland domestic law. Put another way, there is an international history tothe modern British legal tussle with the right to asylum. The converse isalso the case: the international legal history of the right to asylum has animportant British history, stemming not least from Britain’s long involve-ment in Jewish territorial and asylum questions.

Conclusion

The UDHR is not the trajectory into which the Aliens Act is usuallyplaced. It is more commonly historicized as British domestic immigrationlaw, an antecedent to the 1962 Commonwealth Immigrants Act that was in2012—fifty years later—remembered mostly as “cruel and brutalanti-colour legislation.”185 The fact that it encoded an individual’s rightto asylum in domestic law for the first time is not often remembered, per-haps because British officials subsequently distanced themselves soactively from this principle. Bringing together international and domesticlaw in this way reveals a certain irony in the first 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 Sessionof 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).


http://www.migrantsrights.org.uk/blog/2012/01/marking-50-years-commonwealth-immigration-controls




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 anindividual 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 andsometimes explicitly on the basis of race or nationality. But it was clearlyso much else besides. The asylum clause places it at the crossroads of sev-eral legal traditions within both domestic and international law: the historyof political asylum and extradition, the history of excluding the enemyalien who might threaten a state’s political security, the history of immigra-tion law in which undesirable entrants were defined and excluded, and thehistory of international refugee law. Each of these dealt with the questionof entry to, and exclusion from, the modern state, but none was quite redu-cible to the other.


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