The 1905 Aliens Act

In 1882, the so-called “May laws” enacted by the Russian tsar, Alexander III, affected Jews in Russia and Russian Poland, restricting their social and economic participation, conduct, and mobility. Pogroms through the 1880s and 1890s forced many thousands to migrate from ports in continental northern Europe, with most intending to land eventually in the United States, travelling via British ports. Some, instead, settled in Britain, although the number doing so was not large: approximately 120,000–150,000 European Jews settled there between 1881 and 1914.Footnote ¹⁸

The lack of clarity on numbers is precisely to the point. There was no comprehensive system of regulation, restriction, or even of registration of entrants in Britain, notwithstanding the Registration of Aliens Act 1836, a statute so thinly implemented, if at all, that by the end of the century it had been more or less forgotten. In 1891, the Privy Council had affirmed that the Crown had the power to legislate to prevent foreigners from entering its territory.Footnote ¹⁹ However, Britain itself had no established practice by which people were refused entry or detained, except as part of emergency quarantine regulations, themselves diminishing as the century progressed.Footnote ²⁰ This is what the Aliens Act turned around. It received royal assent in August 1905, and took effect from January 1, 1906.

The statute defined certain immigrants as “undesirable” using a range of criteria, set out a number of exceptions, and detailed the processes by which undesirable immigrants could be turned back at various ports, be deported if already resident, and appeal against such decisions. “Undesirable immigrants” were defined as those who: (a) could not demonstrate the means to “decently support” themselves and any dependents; (b) were a “lunatic or an idiot,” or had any other disease or condition likely to render them a public charge; or (c) had been sentenced for an extraditable, non-political crime in a foreign country with which Britain had an extradition treaty.Footnote ²¹ In line with extradition law (indeed, as the flipside to extradition as a defense to removal), the Act contained an exception for immigrants “seeking admission … solely to avoid prosecution or punishment on religious or political grounds or for an offence of a political character.”Footnote ²² And, in a new twist, it contained an exception for immigrants seeking admission to avoid “persecution, involving danger of imprisonment or danger to life or limb on account of religious belief.”Footnote ²³

In marked contrast to the relatively easy passage of immigration statutes in other jurisdictions in this period, the passage of the Aliens Act was fraught with political difficulty. Multiple Aliens Bills introduced by the Conservatives—in January 1897, February 1898, and April 1904—were roundly defeated, mainly, but not solely, by the Liberals.Footnote ²⁴ The local context that gave rise to the early bills was the coincidence of the Jewish pogroms, the 1890s economic depression, and the rise of British labor politics in which London's East End votes were critical in a franchise that entitled all male householders.Footnote ²⁵Anti-immigrationists cast Eastern European and Jewish immigrants as a threat to wages and industrial conditions, arguing in particular that the presence of alien workers compounded the “sweating” systems of labor that were just then being politicized by an emerging Labor movement. As in other national contexts in which immigration laws were being introduced, a core rationale for the restriction of entry of aliens centered on the regulation of labor.Footnote ²⁶ Unlike other national contexts, however, there was a long British tradition of liberal politics that objected to the regulation of anything, including working conditions and immigration. On these grounds and others, the successive Aliens Bills and the very principle of immigration restriction were resisted by the Liberals as an attempt to introduce “back-door” labor law, and even as anti-sweating measures.Footnote ²⁷ Immigration restriction raised the great political dividing line between protectionist policies on the one hand, and (Liberal-endorsed) free trade on the other. The young Winston Churchill, for example, at that point a member of the Liberal Party, unreservedly objected to immigration restriction on these grounds. Deeply opposed to protection of the labor market, he argued that the free movement of people necessarily went along with the free trade of goods.Footnote ²⁸

Throughout the 1890s and into the early twentieth century, a stark and populist anti-Semitism was at work in the East End of London. And although regularly denied at the time, it was evident in Westminster and Whitehall as well.Footnote ²⁹ It is also the case, however, that many stood ready to expose anti-Semitism in the context of the Aliens Bills and the rise of anti-immigration lobbying.Footnote ³⁰ Therefore, if the bills were proposed and driven through as part of British anti-Semitism, they were also resisted as part of British opposition to anti-Semitism. As the parliamentary debate on the unsuccessful Aliens Bill of 1904 was reported in The New York Times: “Opposition to the Aliens Bill … was based largely on the belief that the measure was essentially Anti-Semitic. Indeed it was alleged by some speakers that the bill actually had its origin in hatred of the Jews.”Footnote ³¹ A sizeable Jewish community was part of the East End constituency, and their interests were taken up directly by some members of Parliament, notably Stuart Samuel, the Liberal member for Whitechapel. In public debates on the bills, in organized lobbying against them, and in monitoring the implementation of the Act as finally passed, Jewish members of Parliament, such as Samuel, and, especially, Lord Rothschild were key figures: intermediaries among the Jewish community, Whitehall civil servants, and their fellow politicians across party lines.Footnote ³²

It was entirely understood that the Aliens Bills and ensuing Aliens Act were to be applied with respect to Eastern European Jews, as they formed the bulk of entrants under the Act's definition of “immigrant” in those years. However, neither the bills, nor the Act, nor the returns to be completed at port of entry, mentioned Jews specifically.Footnote ³³ British governments and civil servants were traditionally uncomfortable about making legal distinctions between individuals on the basis of nationality, race, or religion. For example, when various self-governing colonies within the British Empire sought to mention Chinese, Indians, or Japanese in their immigration statutes, it was the Colonial Office in London that typically tempered such propositions.Footnote ³⁴ The explicit nomination of a “Chinese Exclusion Act,” for example, or the use of “Asiatic” as a category for exclusion, was something that successive Colonial Secretaries in London opposed, and the reason why royal assent was sometimes withheld. Likewise, in most immigration restriction statutes of the period, the complete exclusion of people by ethnicity, race, or religion was never intended (or realized). Immigration laws in North America and Australasia were typically class-based measures aimed at laborers or the destitute, distinguishing between “steerage” and “cabin” class passengers.Footnote ³⁵

The Aliens Act was no exception. It defined “immigrant” as “an alien steerage passenger,”Footnote ³⁶ and, further, leaving discretion with the Secretary of State, defined a “steerage passenger” as any passenger not deemed by the Secretary of State to be a “cabin passenger.”Footnote ³⁷ It applied only to ships that held twenty or more such immigrants,Footnote ³⁸ and this had no application to other people seeking leave to land. One criterion for exclusion was steerage passengers' incapacity to show that they could support themselves financially. Again, this was standard for most immigration laws at the time; indeed, it was derivative of United States and colonial laws that sought to exclude people most likely to become a “public charge.”Footnote ³⁹ The Aliens Act, on its own terms, did not seek to exclude all aliens, or all Jews, but instead only criminal aliens, the destitute, the ill, or the infirm who, it was claimed, would burden Britain's Poor Law institutions and its developing health and welfare systems. These, for better or worse, were the “undesirable immigrants.”

Despite their longstanding opposition to any immigration restriction measures, it fell to the newly elected Liberal government to first implement the Aliens Act from early 1906. They did not repeal the controversial legislation, but they did seek to mitigate its effects, specifically with respect to the asylum clause. By March 1906, the Secretary of State, Herbert Gladstone, issued a memorandum to the immigration officers who made portside decisions about individuals and the immigration boards charged with hearing appeals against those decisions. Upholding criticism that the boards were ruling beyond the law, he reinforced the original parliamentary intention: that only undesirable aliens should be excluded. It was never intended, he instructed, that the provision should be enforced if “refusal of leave to land would involve great personal hardship or suffering in the case of women and children. So too a man who is free from any infectious or objectionable disease may be in a critical state of health, and to refuse him leave to land might expose him to cruel hardship. Again the statements of a man claiming to be a political or religious refugee may be insufficient or inaccurate yet he may be exposed to serious risk from political causes if he is forced to return.” Events in Russia had become critical in the preceding year. In recognition of the “present disturbed condition of certain parts of the Continent,” Gladstone instructed that the benefit of the doubt “may be given in favour of immigrants who allege that they are flying from religious or political persecution in disturbed districts, and that in such cases leave to land may be given.”Footnote ⁴⁰

Historians tend to stress the exclusionary powers of the Aliens Act as foreshadowing discriminatory dimensions of later Commonwealth immigration statutes. However, the asylum clause sets the early Act apart. The particular British resistance to immigration law, and, when finally passed, the Liberal government's concern to minimize its exclusionary powers in practice, are arguably as significant as the statute having been passed at all. Nothing like this critique and opposition took place in comparable jurisdictions in the late nineteenth and early twentieth centuries. Understanding this peculiarly British disinclination to regulate the entry of aliens is key to understanding an asylum clause that would otherwise seem paradoxical.

Asylum: “Those Ancient Traditions of Freedom and Hospitality”

The Liberals in particular objected to laws that constrained free movement. This was instrumentally connected with their advocacy of free trade. But it was not only instrumental: there was a principle of free movement that required defense. For many British parliamentarians, then, the introduction of the Aliens Act was not merely a natural response to a world of increasing global movement (and regulation of that movement); it was a highly controversial step. It was considered “drastic” and “revolutionary in its character,” even by those who put forward the various bills.Footnote ⁴¹ Many considered that the principle of free movement, and, accordingly, the tradition of having no entry regulations, was part of what distinguished British practice; even part of what constituted British “liberty.” Labour MP John Burns, for example, betrayed the nationalism at stake in defending the principle and practice of free movement, announcing in parliamentary debate that “it was because this was the only civilised nation that did not possess this kind of legislation that he was proud of being a Briton.”Footnote ⁴²

This had long been perceived as a “liberty” defined against continental practice, but in the context of the immigration laws emerging in so many of the British self-governing colonies and especially in the United States, the defining comparative context had shifted somewhat. The question of maintaining or limiting free movement was now compared to “New World” nations that were leading the trend in regulating entry, and in defining undesirable immigrants. Other jurisdictions legislating to restrict the free movement initially of Chinese people—in all the Australian colonies, New Zealand, the United States, Canada, Natal, the Cape Colony, and Newfoundland—had fewer qualms about cutting across any principle of international law that safeguarded the right to “free movement.”Footnote ⁴³ Ironically, perhaps, it was Chinese people themselves, rather more than the world's “neo-Britons,” who articulated the right to free movement that many in Westminster saw as a defining British characteristic.Footnote ⁴⁴

Related to this was the belief of many members of Parliament that the restriction and regulation of would-be immigrants fleeing persecution undercut a strong traditional British self-story that their nation was, and should remain, a place of asylum and refuge from tyranny.Footnote ⁴⁵ Britain had a long tradition of granting asylum to those fleeing political and religious harms in a way that distinguished it from other countries.Footnote ⁴⁶ The novelty in British practice was that it was, in principle, undiscriminating. Whereas European countries tended to offer asylum on a selective basis, dependent upon an individual's nationality or political views, Britain in theory sheltered anyone, and loudly proclaimed its distinction in doing so. In appealing to this “precious heritage,” as Conservative Prime Minister Arthur Balfour put it,Footnote ⁴⁷ both proponents and opponents of the Aliens Bills and the Act were rehearsing an aspect of British national identity that reached back centuries into a Protestant/Catholic past, but that was raised over and over again during the politically tumultuous nineteenth century. It was political asylum most often referred to, although it was understood that Britain had a longer history of granting asylum on religious grounds as well, in particular to continental Protestants, most famously the Huguenots.

This was all part of British liberty, Sir Erskine May claimed in his Constitutional History of England, written just after the passage of the Aliens Act.

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

Among the English working men mentioned by Churchill was the Anglo-Jewish community. In the context of the Aliens Bills, they, too, loudly proclaimed and mobilized the British tradition of asylum. The Jewish Board of Deputies was not opposed to immigration restriction as such, agreeing that measures needed to be put in place to protect against “the invasion of undesirables either criminal or diseased.”Footnote ⁵⁰ But the tradition and principle of refuge needed safeguarding. Expediently, perhaps, the Zionist Association spoke of a Britain that “had ever been a land of the free—the asylum of the oppressed.”Footnote ⁵¹ In one sermon, the Reverend S. Singer appealed to this popular nationalism in which Anglo-Jews themselves were invested: “We could not believe that the majority of our countrymen would lend themselves to anything like a reversal of the principles upon which the fame as well as the prosperity of the Empire had been built up.”Footnote ⁵² It was with some political effect that the Jewish Chronicle proclaimed the 1904 Aliens Bill's failure to include an asylum clause as simply “un-English.”Footnote ⁵³ This was a far more expedient charge than one of “anti-Semitism,” which one might expect from the leading Anglo-Jews. In fact, Jewish deputations did not just avoid anti-Semitic accusations in these public debates, they also diplomatically defended politicians against them. The charge of being “un-English” was a different story, however, and in the circumstances possibly more effective.

Drafting Asylum

One difficulty when it came to drafting the Aliens Bills was that this apparently cherished principle of asylum had functioned as traditional policy over the nineteenth century “not by law, but by the absence of laws.”Footnote ⁵⁴ This was one reason why the early Aliens Bills had no asylum clause. Another was that the various United States and colonial immigration restriction laws on which the bills were modeled had no such clause either, although for different reasons. Fairly quickly, however, the need to safeguard asylum became one of the main points of contention. Over 1904 and 1905, when a new set of Aliens Bills was introduced, it was less the principle of asylum per se that was most in question, than what effect an aliens act would have on traditional, but uncodified, practice and policy; whether, therefore, the principle of granting asylum needed safeguarding by explicit codification, and, subsequently, whether religious grounds for refuge should be added to the conventional political grounds for protection.

As will be discussed, although asylum on political and religious grounds was historically part of British practice, by the nineteenth century, the notion of “asylum” connoted “political asylum,” which was part of extradition law.Footnote ⁵⁵ This makes sense if one considers that previously, in the absence of laws regulating the admission of aliens, it was only when they were threatened with removal—for example, when another state requested their extradition—that any consideration of harm to which they might be subjected on return became relevant. Accordingly, the clause that was eventually to include religious persecution began as a clause that defined an extradition exception. “In the case of an immigrant who proves that he is seeking admission to this country solely to avoid prosecution for an offence of a political character, leave to land shall not be refused on the ground merely of want of means, or the probability of his becoming a charge on the rates.”Footnote ⁵⁶

The wording of this draft clause derived from the 1870 Extradition Act.Footnote ⁵⁷ Stretching the provision of political asylum to include recognition of religious persecution became the key point of difference between Liberal and Conservative positions. As Stuart Samuel, MP, explained to the Jewish community, “An asylum has invariably been afforded to the victims of religious disability, to the great advantage of this country, and I fail to see by what right this great principle of liberty is now being abandoned, as is proposed under the present Bill.”Footnote ⁵⁸

Prime Minister Balfour conceded initially to an amendment that would admit aliens fleeing to Britain “to avoid persecution involving danger of imprisonment or danger to life or limb.”Footnote ⁵⁹ Although the Jewish community thought this an improvement to the legislation that would justify the reception of Jewish fugitives from critical events taking place in Lodz, Odessa, and Warsaw, for example, it imperfectly recognized the chronic as well as acute and violent nature of oppression in Russia. “A dramatic stroke of misfortune will entitle a man to enter, but slow torture does not count.”Footnote ⁶⁰ It was then proposed to add “punishment on religious grounds,” but the Liberals, led by reformist Sir Charles Dilke, thought that too weak.Footnote ⁶¹ He proposed a clause that would provide for the admission of an alien “solely to avoid prosecution or punishment on religious grounds, or for an offence of a political nature, or to avoid danger to life and limb on account of his religious beliefs or to avoid persecution involving danger of imprisonment or of detention in or expulsion from his home on account of his religion.”Footnote ⁶² Ultimately, it was Dilke's wording that was included. Aliens were not to be excluded if fleeing “persecution, involving danger of imprisonment or danger to life and limb, on account of religious belief.” If this were proven (by the immigrant), permission to land could not be refused.Footnote ⁶³

The Jewish Chronicle favorably reported Dilke's interventions and the government's agreement: “There is something in this amendment beyond the safety of the Jewish refugee. It enshrines a lofty principle and a great tradition. The reaffirmation of this principle by the British legislature in the face of the world would constitute a new triumph for religious freedom.”Footnote ⁶⁴ They were right. None of the jurisdictions with comparable immigration restriction statutes incorporated such an exemption for those fleeing political and religious persecution. Of course, principle had not always been matched by practice, as the Anglo-Jewish community knew better than most. Prime Minister Balfour tried from time to time to puncture the nationalist talk, offering his own reality check on overblown British self-congratulation. He thought the honorable members of the House of Commons might “put aside this fancy picture that from time immemorial this country had been so much in favour of religious equality and the rights of conscience that it gave an asylum to the religiously persecuted of all nations.”Footnote ⁶⁵ But the idea of Britain as place of refuge from tyranny was so powerful that he could not sustain such a position publicly without risking political ground. He had to backtrack from such cynicism, and affirmed that although his government was introducing an immigration restriction statute to exclude destitute aliens, he fully recognized the need for asylum from religious as well as political persecution. “We have heard a great deal of the possibility of Jews and others … coming to this country in an absolutely destitute condition, and being rejected, under this Bill, from our shores, although they were flying from religious or political persecution. Nobody desires that such a contingency should occur.”Footnote ⁶⁶

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

To some considerable extent, however, Balfour was dissembling and simply pandering to a British chauvinism. The asylum clause was not necessarily the progressive humanitarian measure it might seem. Its double-edged effect was evident in one of Balfour's justifications of it. It is important to recognize that it was almost impossible for him to introduce and successfully defend an Aliens Bill without some recognition of, and expression of loyalty to, the British tradition of asylum. This already tells us a lot. “We have been accused on this side of the House of having unduly desired to restrict that hospitality which has for generations been extended by us to all and sundry who desire to come to our shores, whatever be their race, whatever be their religion, whatever be their politics, and whatever be their social status. For my own part, I altogether repudiate that view.”Footnote ⁶⁸ But that was just the preface to his real message. Balfour struck at what was for him core business: the clause functioned to ensure asylum for those who deserved it, and to filter out the undeserving: the “undesirables.” “It must be remembered that hospitality, although a virtue, is not obligatory either upon individuals or upon nations; and if you want it to be practised, either by an individual or by a nation, it is really in the highest degree desirable that it should not be abused.”Footnote ⁶⁹

This begins to sound more like the arguments of the late twentieth and early twenty-first centuries, and was in practice the work of the port immigration officers and the immigration boards that heard appeals against decisions denying entry. Balfour reflected the position in international law: no state could be compelled to admit a foreigner to its territory, although if it chose to grant asylum, then it could not be compelled to surrender that person.Footnote ⁷⁰ As such, Balfour's statement was perhaps designed to highlight just how generous Britain was in including a provision of this kind: one that must therefore be shielded from abuse. Despite his disinclination to include an asylum clause, Balfour was so bold as to frame the bill in its final reading as a measure that would ensure that the great British tradition of hospitality would remain protected against those who would abuse it. In his view, it would keep out those who ought to be kept out, and make welcome those who should be admitted, thus not just honoring but safeguarding what he, too, considered part of Britain's “precious heritage.”Footnote ⁷¹

There was much to what Balfour said, for better or worse, as the clause was, in one view, a reversal of prior British practice on asylum.Footnote ⁷² The Home 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 of asylum and the law of extradition.”Footnote ⁷³ He was also deeply worried about how this provision could possibly be implemented with no pre-existing administrative structure.Footnote ⁷⁴ It put the onus of proof on the asylum seeker, whereas before no proof had been required.Footnote ⁷⁵ In this view, far from introducing an expectation of asylum, the Act functioned to restrict the free entry of those seeking refuge, which had been the traditional position in Britain (when borders were not controlled). Previously, those in need of protection could enter the territory and remain without having to justify their presence.Footnote ⁷⁶ Thus, the citing of particular grounds for asylum represented a narrowing of this more generous practice.

This is an interpretation that sits comfortably with the restrictive nature of the Act so well traversed in other accounts of the legislation. When scholars have noted the asylum clause, it typically has been assessed as a retrograde move away from a broad freedom of entry, and an anti-Semitic one at that.Footnote ⁷⁷ For these reasons, some commentators at the time and several historians since have been disinclined to grant the clause the significance that it would seem to warrant. However, many early twentieth century commentators thought otherwise. Some considered that the Act gave far greater certainty to people at risk of persecution. The Jewish journalist J.M. Landa, for example, described the asylum clause as a “precious safeguard which consecrates by legislation a noble tradition,” while objecting to the Act as a whole.Footnote ⁷⁸ This is precisely what worried some anti-immigrationists about the law at the time; in defining those to be selected out and refused permission to land, by the same stroke it selected everyone else in. “Has any alien, not undesirable in the sense of the Act,” asked one worried author in The Juridical Review, “now a right of entry to our jurisdiction”?Footnote ⁷⁹ Some legal scholars went so far as to say that the Aliens Act conferred an individual right of asylum that was not just new to British law, but was, to their knowledge, unique.Footnote ⁸⁰

Domesticating International Law

As soon as the Aliens Act was passed, N.W. Sibley and Alfred Elias, two British barristers with specialist interest in international law, joined forces to assess its significance.Footnote ⁸¹ It was not the exclusion of would-be immigrants on which they focused, but rather this newly codified right of asylum. They deemed the Act “the most comprehensive declaration of the right of asylum that is to be found in the whole range of municipal legislation, not merely in the history of this country, but throughout the civilized world.” They located the antecedents of the Act's asylum provision in international law, but regarded its statutory expression as “declar[ing] the Right of Asylum even more fully than International Law.”Footnote ⁸²

Tracing the principle of asylum through the classical international legal scholarship of Vitoria, Pufendorf, Vattel, and Grotius, Sibley and Elias examined its nature. They said that the right to asylum

Just such limits were in operation with respect to the Aliens Act; namely, with respect to the “anarchist menace” that was a secondary rationale for introducing Aliens Bills in the late 1890s. Anarchy was not considered to be a political offence, and it had been ruled that anarchists could not benefit from protection.Footnote ⁸⁴ They were, in essence, Vattel's “enemies of the human race.” Indeed, the UDHR and modern international law reflect this position, containing an exception to asylum for “prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.”Footnote ⁸⁵

Grotius, writing more than a century before Vattel, had expressed a more liberal view that banished persons could seek a new home in other nations, and could assert their right to do so by force if necessary.Footnote ⁸⁶ He described asylum as being “for the benefit of those who suffer from undeserved enmity, not those who have done something that is injurious to human society or to other men.”Footnote ⁸⁷ He also wrote that “[a] permanent residence ought not to be denied to foreigners who, expelled from their homes, are seeking a refuge, provided that they submit themselves to the established government and observe any regulations which are necessary to avoid strifes,” and provided they had not committed offences affecting public order or crimes against another sovereign.Footnote ⁸⁸ Pufendorf's later analysis, however, found that it was a matter of state discretion whether aliens were to be admitted. He recognized an exception for those driven “by necessity or by any cause that deserves pity or compassion.”Footnote ⁸⁹ But that discretion, he thought, could justifiably be an expedient one. A state might offer refuge to “a small number of men expelled from their home, not for their demerits or crime,” particularly if they were “industrious or wealthy, and will disturb neither our religious faith nor our institutions.”Footnote ⁹⁰

Sibley and Elias also analyzed the Aliens Act in the context of British law on immigration and asylum. Britain had made previous attempts at immigration law in the context of political insecurity and war, but none had explicitly nominated the categories of persons to be excluded, or included. The Aliens Act 1793 had established “regulations respecting aliens arriving in this kingdom, or resident therein, in certain cases.”Footnote ⁹¹ That statute was crafted in a context of the influx of émigrés from the French Revolution.Footnote ⁹² Its purpose was selectively to permit entry, and the Crown was empowered to regulate the landing, residence, and expulsion of aliens. A register was to be compiled with the names, rank, occupation, or description and place of residence of all aliens arriving in Britain.Footnote ⁹³ But as early twentieth century commentators noted, this legislation was justified only “by the extraordinary exigency of the times,” and was “wholly inconsistent with the free and liberal spirit” entertained up until that time of revolution and war.Footnote ⁹⁴ Asylum seekers and refugees were not mentioned, as it was presumed by convention that they could and would enter. But a broad discretion in section VII empowered the King by proclamation or order in council to refuse permission to land to “Aliens of any Description” if this were considered “necessary for the Safety or Tranquillity of the Kingdom.”Footnote ⁹⁵

Five years later, in 1798, an Act for Establishing Regulations Respecting Aliens was adopted. It instituted a requirement that aliens register and obtain a license to reside in Britain. This stemmed from concerns that the institution of asylum might be abused “by Persons coming to this Kingdom for Purposes dangerous to the Interests and Safety thereof.”Footnote ⁹⁶ Although the Act has been described as “a significant advance in recognising the importance of the principle of asylum,”Footnote ⁹⁷ the principle itself was not binding. Appearing in the preamble, it simply framed the statute's object and purpose. With peace after the Napoleonic Wars, the 1793 and 1798 Acts were repealed and replaced by the 1836 Act for the Registration of Aliens: a statute that quickly fell into abeyance.

Prior to the 1905 Aliens Act, then, British practice had been consistent with the international law position that asylum was the privilege of the state to bestow, rather than a right of the individual to claim. The first edition of Oppenheim's classic treatise on international law, published in 1905 shortly before the Act's passage, summarized that position:

The great significance of the Aliens Act, then, for commentators such as Sibley 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 between the British and continental approaches in his book L'Aliens Act de 1905: Causes et Résultats.Footnote ⁹⁹ In Pépin's view, the British approach to granting asylum stemmed from a historically based Protestant nationalism: “le droit d'asile est une règle traditionnelle d'Angleterre; on le trouve à toutes les époques de son histoire.”Footnote ¹⁰⁰ By contrast, on the continent, the predominant approach was that individuals had no right to be granted asylum, but rather the state had a right to confer if it so wished.

United States legal scholars also noted the Act's innovations in codifying, but also modifying, elements of international law. The clauses excluding the diseased, the insane, and the destitute were all familiar to them, modeled as they were on United States law, and standard as they had become across multiple jurisdictions.Footnote ¹⁰¹ The right of asylum, however, excited particular interest. In the Digest of International Law, Columbia professor John Bassett Moore, later a judge of the Permanent Court of International Justice, commented that: “No legal term in common use is perhaps so lacking in uniformity and accuracy of definition as the ‘right of asylum’.”Footnote ¹⁰² The British Aliens Act now provided one definition, he noted. James Brown Scott, editor of the American Journal of International Law, concurred that the right of asylum thus defined was novel, adding that it was as “wise as it is humane.”Footnote ¹⁰³ The equivalent United States statute—the 1882 Act to Regulate Immigration—was an attempt to restrict the entry of paupers, contract laborers, and criminals. It was deemed by another United States commentator to be “rigid and inelastic,” requiring “relaxation as a concession to humanity.”Footnote ¹⁰⁴ Comparing the British and United States legislation, Scott endorsed the “humane provisions of the English act exemption from exclusion on the ground of want of means persons flying from persecution on religious or political grounds in certain cases.”Footnote ¹⁰⁵

Sibley and Elias also drew comparisons between the United States and British immigration statutes. They considered that despite their otherwise “implicitly identical” scope and purpose, aimed “not at the alien, but at the undesirable alien immigrant,”Footnote ¹⁰⁶ there was one major difference. Whereas section 4 of the United States legislation essentially codified the “political offence exception” in extradition law,Footnote ¹⁰⁷ section 1(3) of the Aliens Act articulated a broader right to asylum that applied not just to criminals, but to any person seeking protection from persecution. Sibley and Elias understood both provisions as conferring a “right of asylum,” but noted that:

Sibley and Elias struck here at the heart of what was to emerge as the bifurcation of asylum.

The Bifurcation of Asylum: Extradition Law and Refugee Law

Protection from surrender for political offenses (the “political offense exception”) was already an established part of extradition law. By contrast, protection from removal to persecution grew out of the political offense exception but developed as refugee law, and over time came to be housed domestically within immigration statutes. This bifurcation was the Act's first point of novelty (after the inclusion of the asylum clause itself), and as such needs further explanation.

The ancient tradition of asylum derived from the practice of providing shelter to fugitives who reached a privileged place, safe from invasion and pursuit. By virtue of its long history, hospitality and protection came to be regarded as the fugitive's privilege, and with the formation of nation states, states themselves became refuges for offenders against the laws of other nations. Thus, “asylum” historically was understood as fugitives' right to protection from pursuit by the entity from which they had fled. This understanding of full hospitality eventually abated, however, as states started to assert their right to extradite offenders within their jurisdiction.

However, as states sought to remove criminals from their territories, another exception developed: persons wanted for purely political offenses would not be expelled. The “political offense exception” to surrender in extradition law became synonymous with “asylum,”Footnote ¹⁰⁹ and those protected from removal were commonly described as “political refugees.”Footnote ¹¹⁰ By 1905, this was a well-established concept and practice, but one that was distinct from the humanitarian concept of “asylum” as protection from (religious) persecution.Footnote ¹¹¹

That asylum was generally synonymous with a refusal to surrender political offenders is not surprising, given the late emergence of domestic laws regulating the admission of foreigners. As Price has explained, “[i]n a world of open borders, asylum was needed only by those facing extradition; other persecuted people were admitted as migrants.”Footnote ¹¹² Given the relatively free movement of persons across Europe until the outbreak of World War I,Footnote ¹¹³ consideration of protection needs at the point of entry rarely arose.Footnote ¹¹⁴ In juridical terms, then, the need for asylum was only relevant 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 in need of asylum became relevant at the point of entry as well. Thus, as immigration laws were codified, the notion of asylum began to encompass other persecuted people as well, expanding “from an element of international criminal law (a defense to extradition) to a subset of immigration policy (a defense to deportation).”Footnote ¹¹⁵ The novelty of the 1882 Immigration Act in the United States was to include a political offense exception in immigration law for the first time, as an exception to exclusion from entry. Yet significantly, the British 1905 Aliens Act broadened this protection even further. Not only did it provide for admission for those at risk of political prosecution (whose removal was already precluded by the Extradition Act 1870), but it also encompassed those at risk of persecution for religious reasons.Footnote ¹¹⁶ As such, it was a turning point in the evolution of refugee law. It essentially introduced a “refugee” category into domestic immigration law, which was distinct from the traditional extradition law political offense exception.Footnote ¹¹⁷ Whereas this was to become standard practice in the second half of the twentieth century, it was highly unusual for this period.Footnote ¹¹⁸

The Aliens Act's second point of novelty is related closely to the first: its inclusion of “persecution” as a basis for admission. It was another forty years before that term would appear in an international refugee instrument (the constitution of the International Refugee Organization (IRO)). Moreover—and the third point of novelty—the Act marked the start of a nominated approach to identifying protection needs (here on the basis of political opinion and religion), foreshadowing later developments in international refugee law.Footnote ¹¹⁹ Commentators at the time described the Act's inclusion of religious persecution as unique,Footnote ¹²⁰ and to our knowledge, it was the first English-language statute to list persecution on religious grounds as a basis for admission. At least since the Edict of Potsdam in 1685,Footnote ¹²¹ no other domestic law had contained a similar provision.Footnote ¹²²

Interestingly, the United States Immigration Act of 1917, enacted just over a decade after the 1905 Aliens Act, also referred to “religious persecution.” That Act regulated the immigration of aliens into the United States by listing categories of aliens excluded from admission (just as the British statute did). “Illiterates” were one such excluded group. To determine whether or not someone was illiterate, all persons over the age of sixteen who were physically capable of reading were required to undergo a literacy test (in a language selected by the prospective immigrant). However, the Act exempted from the literacy test persons able to prove that they were seeking entry “to avoid religious persecution in the country of their last permanent residence, whether such persecution be evidenced by overt acts or by laws or governmental regulations that discriminate against the alien or the race to which he belongs because of his religious faith.” It also exempted “persons convicted, or who admit the commission, or who teach or advocate the commission, of an offense purely political.”Footnote ¹²³ In the sidebar annotations to the Act, these groups were described respectively as “religious refugees” and “political offenders.”

Although the 1917 Act historically has been analyzed in terms of its restrictive approach to immigration, like the 1905 Act, it similarly contained an asylum carve-out. This was all the more remarkable given that the United States never pursued an open door policy to immigration, in contrast to Britain prior to 1905. Like the British statute, the later United States Act reflected the bifurcation of asylum into its refugee law and extradition law components.

A Retreat from Asylum

Britain's generous approach to asylum was short-lived, however.Footnote ¹²⁴ Its codified individual right to asylum functioned formally from 1906 to 1914. Britain then beat a hasty retreat, albeit initially in the extraordinary circumstances of war. The asylum clause was removed from the 1914 and 1919 aliens statutes,Footnote ¹²⁵ which reverted to the political security tradition of alien laws, reminiscent of the 1793 Act, focusing on the exclusion of “enemy aliens” from British territory and their treatment within British territory.Footnote ¹²⁶ Although the 1914 Act did not explicitly protect refugees, some scholars have argued that protection continued to be granted throughout the war to Armenian refugees from Ottoman persecution and, after invasion, to numerous Belgian refugees.Footnote ¹²⁷ In R v Secretary of State for Home Affairs, ex parte Chateau-Thierry, it was stated that the Attorney-General had claimed he had “no intention of enforcing the provisions of the Act of 1914 against such refugees.”Footnote ¹²⁸ The court noted the “marked contrast” between the language of the 1905 Act and that of the 1914 Act, acknowledging the latter's wide discretionary powers and absence of “safeguards of the former Act.”Footnote ¹²⁹

The retreat from the high point of the 1905 Aliens Act became increasingly apparent after World War I. In 1925, the Home Secretary, Sir William Joynson Hicks, denied that political fugitives were refused admission to Britain, although he did admit that political refugees were excluded if they were “undesirable in other respects.”Footnote ¹³⁰ In 1929, the Home Secretary, John Clynes, remarked in relation to the exclusion of Leon Trotsky that: “No alien has the right to claim admission to this country if it would be contrary to the interests of the country to receive him.”Footnote ¹³¹ This recalled Vattel's “enemies” and the exclusion of late-nineteenth century anarchists from protection. Perhaps most significantly, of the eight parties to the 1933 Refugee Convention, the United Kingdom was the only one to reject article 3(2) (the first non-refoulement provision), which provided that each contracting party “undertakes in any case not to refuse entry to refugees at the frontiers of their countries of origin.”Footnote ¹³² The United Kingdom delegate subsequently told the Intergovernmental Advisory Committee on Refugees that: “His Majesty's Government must reserve the right to refuse admission to the United Kingdom to any alien, whether or not he comes within the category of stateless refugees.”Footnote ¹³³

In international circles, then, successive British governments were withdrawing from the principle that any individual had a right to claim and be granted asylum. This retreat was to continue. And yet the narrative about the development of the refugee definition in international law is customarily traced to the first international refugee instruments developed by the League of Nations and subsequent organizations. The interwar years are often pinpointed as the decades in which refugee law made great strides. The periodization offered by one leading refugee law scholar, James Hathaway, has been particularly influential in this respect. Although acknowledging the long history of asylum in state practice, and in fact limiting his study to the “evolution of refugee status in international law: 1920–1950,” his typology for analyzing this period has reinforced the idea that “persecution” did not emerge as a defining feature of the refugee until 1938.Footnote ¹³⁴ He described the founding resolution of the Intergovernmental Committee on Refugees in 1938 as “innovative” because of its focus on personalized grounds for refugee status—“political opinions, religious beliefs or racial origin”—rather than on a general absence of protection (as in the earlier League instruments).Footnote ¹³⁵ He explained that “[t]he essence of refugee status came to be discord between the individual refugee applicant's personal characteristics and convictions and the tenets of the political system in her country of origin.”Footnote ¹³⁶ Elsewhere, he stated that “[t]he move to a more individuated conception of refugeehood signalled the shift from a refugee law based on general humanitarian concern to provide en bloc protection, to a more selective focus on assisting persons whose basic human rights were jeopardized.”Footnote ¹³⁷ This is the case if the conception of refugee is considered to be produced solely in and by international law. However, the need to incorporate domestic law into this history is suggested by the 1905 Aliens Act, which itself drew on—and extended—international law principles. As the preceding analysis of the Aliens Act shows, developments in the 1930s did not herald a new conceptualization of protection, but rather a return to the kind of considerations with which the British government had been concerned at the beginning of the century. Whereas Hathaway regards the progressive international developments as a scaling up of protection, from a different viewpoint they can be seen as a scaling down.

The League of Nations refugee instruments drafted between 1922 and 1939 were not designed to define the socio-legal phenomenon of the “refugee” in any comprehensive manner, nor to provide for a general right to asylum. Rather, they carved out particular classes of beneficiaries for League assistance: for identity documents, funding, and so on. They were “technical definitions used for legal and administrative purposes,” which did not encompass refugees “in a wider, political sense.”Footnote ¹³⁸ They were also considered to be temporally limited rather than serving a universal function.Footnote ¹³⁹ In this way, they were more limited than the asylum provision 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 as someone fleeing “persecution,” which characterizes the 1951 Refugee Convention. Accordingly, “persecution” is commonly periodized as a mid-twentieth-century phenomenon.Footnote ¹⁴⁰ Hathaway argues that it “evolved from” the 1938 Convention Concerning the Status of Refugees coming from Germany, and was rephrased in the 1946 IRO Constitution and subsequently the 1951 Refugee Convention.Footnote ¹⁴¹ The received narrative—that international instruments developed in the 1920s, that the concept of persecution appeared in the 1930s and 1940s, and that this all progressed to the 1951 Convention—is valid on a narrow view of just where and how international “refugee” law emerged. Another view is that these decades were characterized by retreat. Thus, the (re)emergence of the term “persecution” in the 1940s was not revolutionary, but evolutionary.Footnote ¹⁴²

Certainly, as far as the British were concerned, the tendency over these decades 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 the case both in its domestic asylum and immigration laws (taking the Aliens Act as a benchmark) and in its engagement with international law. If anything, the Aliens Act became a problem for the British; something to sidestep. Tellingly, British representatives in interwar discussions tended to cast back not to the Act and its asylum clause, but beyond it, to the earlier and less complicated position in which the state granted asylum as a privilege. This was evident at the 1938 Evian Conference, for example, which was convened to manage the international response to another wave of anti-Semitic domestic laws in continental Europe. The British delegate, Lord Winterton, predictably invoked the long British tradition of asylum that briefly had been rendered an individual right by the Aliens Act, but by this point, the British commitment to asylum that had been so strongly defended in the discussion around the 1905 Act no longer had the same purchase. Lord Winterton explained that although it had been “the traditional policy of successive British Governments to offer asylum to persons who, for political, racial or religious reasons, have had to leave their own countries,” contemporary “economic and social reasons” meant that “the traditional policy of granting asylum can only be applied within narrow limits.”Footnote ¹⁴³ In the post-Depression context he was, in a sense, again claiming Vattel's limitation on asylum that took into account the situation of the host country, a limit that had been noted by Sibley and Elias early in the century.Footnote ¹⁴⁴

Therefore, by the time Sir John Hope Simpson, who authored a number of reports on state practice concerning refugees, conducted his 1938 survey, consensus in Britain and elsewhere had returned to the “traditional” position of international law. Hope Simpson concluded that it could not be said that individual refugees had a “right” of asylum. Rather, asylum was “a privilege conferred by a state, not a condition inherent in the individual. So far as it has a technical meaning in international practice the ‘right of asylum’ refers to the custom of not allowing the extradition of a person for a purely political offence.”Footnote ¹⁴⁵ In the same year, refugee historian Louise Holborn, herself having fled Nazi Germany, explained that “[t]he right of asylum, by which a state can accord hospitality and protection to political refugees and refuse to expatriate them even on demand of their state of origin, was widely practiced, and has been the basis for the immediate relief of vast numbers of refugees, even though they cannot claim it as a right.”Footnote ¹⁴⁶

From a legal perspective, there is nothing startling about these assessments; they simply reflected the position at international law. However, they highlight just how idiosyncratic the asylum clause in the 1905 Aliens Act was. Rather than asylum being a prerogative of the executive arm of government, the Act had established a statutory guarantee of asylum,Footnote ¹⁴⁷ which was to remain exceptional. At least as far as the British were concerned, this was a history of retreat as much as a history of progression.

The Universal Declaration of Human Rights: A Right to Asylum?

The postwar period was a critical point at which legal scholars took stock of the codified right to asylum. In doing so, some looked back to the 1905 Aliens Act. Felice Morgenstern, who was to go on to prepare a definitive account of the drafting of the UDHR, was one who did so. In 1949, she described the Act as an early instance of waiving the application of immigration law by “explicitly exempt[ing] political and religious refugees from the main excluding provisions.”Footnote ¹⁴⁸ And she also saw that some 45 years after its own commitment to an individual's right to asylum, a British-driven amendment to the draft UDHR undid any such right, at least from the perspective of the individual. In her view, it made the right of asylum “meaningless.”Footnote ¹⁴⁹ How did this come about? What was the “afterlife,” in international law, of an individual right to asylum that the 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 the first time that such a right had been included in an international instrument, not least an international bill of rights. John Humphrey, the inaugural director of the Division of Human Rights at the United Nations who was responsible for the first draft, reflected that no provision was “more criticized” than that on asylum.Footnote ¹⁵⁰ He conceded that it was “probably too much to expect that governments would give up their discretionary power under international law to refuse to allow foreigners to enter their territories,” pointing out that his draft acknowledged this by simply reiterating the existing position in international law: “Every State shall have the right to grant asylum to political refugees.”Footnote ¹⁵¹ This effectively “sidetracked the issue” as to whether an individual right of asylum existed.Footnote ¹⁵²

During the drafting negotiations, there was fierce debate between the states that felt strongly that a declaration of human rights ought to provide for an individual right to be granted asylum, and those that believed that the instrument should reflect merely a right to seek asylum, leaving it to the discretion of states to grant it. The draft texts oscillated between these two positions. British delegates involved in the drafting process squarely based their interventions on the traditional international law position: that asylum was a prerogative of the state to bestow, and not a right of the individual to demand.

By the conclusion of the second session of the Commission on Human Rights at the end of 1947, the following draft text was adopted: “Every one shall have the right to seek and be granted asylum from persecution. This right will not be accorded to criminals nor to those whose acts are contrary to the principles and aims of the United Nations.”Footnote ¹⁵³ Significantly, given Britain's legislative history, the United Kingdom delegate raised strenuous objections to the words “and be granted asylum.” He argued that some countries might not be able to absorb large numbers of refugees, and that “the State should have the right, for any reason considered right and proper, to refuse to grant asylum.”Footnote ¹⁵⁴ He advocated for a return to the original text of the Drafting Committee that imposed no such obligation, but this was rejected.Footnote ¹⁵⁵

The United Kingdom delegation then proposed an alternative text: “Everyone shall have the right to seek and may be granted asylum from political, racial and religious persecution.”Footnote ¹⁵⁶ It sought to frame this reconfiguration of the asylum provision within an overarching concern that the UDHR “should be throughout in declaratory and not in mandatory form,” which would align better with its purpose as “a statement of ideals.”Footnote ¹⁵⁷ France proposed removing the express reference to a right to be granted asylum, but suggested adding “[t]he United Nations is bound to secure them such asylum,”Footnote ¹⁵⁸ which in effect amounted to a similar guarantee. The United States proposed modifying the wording to suggest only a right to “be granted temporary asylum.”Footnote ¹⁵⁹ In light of these proposals, a drafting sub-committee composed of the United Kingdom, France, and China came up with a revised text. Although it retained a reference to being granted asylum, it was now phrased as permissive, rather than obligatory: “Everyone shall have the right to seek and may be granted asylum from persecution. The United Nations is bound to secure this asylum in agreement with Member States. Prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations do not constitute persecution.”Footnote ¹⁶⁰

The delegate from the American Federation of Labor criticized the mandatory nature of the provision as being without “any real value.”Footnote ¹⁶¹ She described the right to asylum from persecution as “the natural corollary to the right to hold or change one's beliefs,” which was mentioned several times in the draft declaration. This view was echoed by the World Jewish Congress delegate who regarded the right to asylum as “implicit in the concept of the right to life.”Footnote ¹⁶² He argued that in claiming that right, “refugees were not asking for permanent homes but for temporary safety from persecution.” Given that governments such as the United Kingdom, United States, France, and the Union of Soviet Socialist Republics had shown generosity in sheltering many Jewish refugees before and during World War II, “it was difficult to believe that their representatives in the Commission would oppose the inclusion of the right to asylum.”Footnote ¹⁶³ To address the concerns of the United Kingdom and France, he proposed amending wording to the provision to the effect that states were obliged “to secure the right to asylum and that the limitations of that obligation would be laid down in conventions established under the auspices of the United Nations.”Footnote ¹⁶⁴ Noting that the right “had been observed in Europe in the Middle Ages and was being observed now in the Mohammedan countries,” he asserted that: “The Bill of Human Rights would mean little to those who most eagerly awaited it, if the right to asylum, in principle, was not included.”Footnote ¹⁶⁵ After considerable debate, and, according to political theorist Johannes Morsink, as a result of non-governmental organization interventions by the American Federation of Labor and the World Jewish Congress,Footnote ¹⁶⁶ delegates voted on and accepted the re-inclusion of obligatory language: “Everyone has the right to seek and be granted in other countries asylum from persecution.”Footnote ¹⁶⁷

A number of states proposed amendments to this text.Footnote ¹⁶⁸ These can be divided broadly into states that sought to finesseFootnote ¹⁶⁹ or extend the obligation (for example to include asylum in embassies),Footnote ¹⁷⁰ and those that wanted to remove the right to be granted asylum altogether.Footnote ¹⁷¹

Throughout the negotiations, the United Kingdom was one of the strongest opponents to the inclusion of an individual right to be granted asylum. It reserved its most forceful intervention for debate in the Third Committee in the General Assembly. Mrs. Corbet, the United Kingdom delegate, framed the argument in terms of the state's sovereign right to determine who entered its territory, noting that any provision that compelled a state to confer asylum on an individual would be contrary to “almost all existing immigration laws.”Footnote ¹⁷²

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

For Britain, the “right of asylum” now meant simply “the right of every State to offer refuge and to resist all demands for extradition” (encompassed by the notion “to enjoy ... asylum” contained in the British-proposed amendment).Footnote ¹⁷⁴ The British conception of the right to seek and to enjoy asylum was a compromise between the right of the state to control admission to its territory, and the protection of persecuted persons.Footnote ¹⁷⁵ Although Britain agreed “not to grant to a person fleeing persecution the right to enter any and every country,” it would “ensure for him the enjoyment of the right to asylum once that right had been granted him.”Footnote ¹⁷⁶

Ultimately, enough states supported this, and the removal of the obligation to grant asylum was secured.Footnote ¹⁷⁷ France abstained from the vote on the basis that the wording “unduly weakened the article” because the persecuted needed “to receive asylum, not merely the right of asylum.”Footnote ¹⁷⁸ However, it did not want to vote against it, as “it was essential for the declaration to contain an article dealing with the right of asylum.”Footnote ¹⁷⁹ Accordingly, the final provision read: “Everyone has the right to seek and to enjoy in other countries asylum from persecution.”Footnote ¹⁸⁰

Writing in 1948, Hersch Lauterpacht, the Whewell Professor of International Law at Cambridge, dismissed the provision as “an ambiguous play of words.”Footnote ¹⁸¹ He regarded its formulation as “artificial to the point of flippancy” because it did nothing more than restate states' longstanding and “indisputable” right under international law to “offer refuge and to resist all demands for extradition.”Footnote ¹⁸² Lauterpacht regarded it as “couched in a language which is calculated to mislead and which is vividly reminiscent of international instruments in which an ingenious and deceptive form of words serves the purpose of concealing the determination of States to retain full freedom of action.” Reflecting on the drafting process, he observed that far from entrenching any legal obligation, “there was no intention to assume even a moral obligation to grant asylum”; in fact, “[t]here was an explicit disclaimer of any such intention.”Footnote ¹⁸³

Britain's retreat from its position at the start of the century, and the acceptance by other states that “asylum” was something that an individual was entitled to seek and enjoy, but not necessarily be granted, was undoubtedly influenced by contemporary political events. The 1948 Arab–Israeli war had uprooted many thousands of people and was raging while the Third Committee was deliberating on the content of the asylum provision. In one scholar's view, this “explains why the teeth were taken out of the article.”Footnote ¹⁸⁴ Viewing this within a longer historical trajectory, it becomes clear that two major exoduses, circa 1900 and 1948, intersected in important respects with formulations of asylum in both international and domestic law. Put another way, there is an international history to the modern British legal tussle with the right to asylum. The converse is also the case: the international legal history of the right to asylum has an important British history, stemming not least from Britain's long involvement in Jewish territorial and asylum questions.