In the midst of current controversies over immigration law and policy, Professor Alison Bashford discusses why it’s important to recall Britain’s unique place in the international history of modern border control, suggesting that Britain’s principled politico-legal past calls for cautious celebration, rather than the more common critique.
A global trend to legislate for immigration restriction began in the middle decades of the 19th century. It was prompted by two large and sudden global movements – of Irish across the Atlantic during and after the famine of 1845, and of Chinese gold-seekers across the Pacific, to the West Coast of the Americas and to Australasia. California in the US and Victoria in Australia were the first jurisdictions to restrict entry on racial grounds. While the ‘white Australia policy’ became infamous, in fact by 1900 race-based immigration restriction was more ordinary than extraordinary. In most Anglophone jurisdictions – the Canadian provinces, all the Australian colonies, New Zealand, Newfoundland, the US – race-based border control became law and policy with little debate or resistance, sometimes none at all.
Not so in the UK. Pogroms in the 1890s had sparked a great emigration of Jews from Eastern Europe into the UK, mainly en route to the US. It is true and well documented that a freshly visible British anti-Semitism materialised as violently voiced calls for immigration restriction, modelled on US, Australian and New Zealand law. But what was different in Britain was the equally loud objection to closing off borders, indeed to regulating movement at all. In other words, whereas immigration acts were sailing through jurisdictions all over the globe by 1900, in Britain they met fierce, principled and, for a time, successful resistance.
Aliens bills put to Parliament over the 1890s and early 1900s were roundly defeated, argued down mainly by Liberals. By 1904, this included the then-Liberal Winston Churchill.
British politicians opposed immigration restriction on several grounds. For many, free human movement over borders was the necessary corollary of free trade of goods. For others, a moral and political principle of freedom of movement accompanied this more expedient economic rationale. This is where it gets both interesting and strangely unfamiliar to 21st-century political sensibilities.
Not a few parliamentarians proclaimed Great Britain as the last bastion of freedom because it had no immigration restriction policy. Conversely, the US could not, or should not, proclaim itself the land of the free, because it did. British nationalism was thus defined by a commitment to open borders; a stunning reversal of the current situation.
More than this, British liberal opposition to aliens acts and immigration acts rested on a tradition of extending asylum to the politically and religiously persecuted. This had long manifested with respect to European Protestants (religiously) and to those fleeing revolution (politically). A much-treasured hospitable past was mobilised powerfully, and with proud nationalist fervour around 1900, as argument against immigration restriction, setting Britain apart entirely from all other jurisdictions at the time, including all of its own settler colonies. There was simply no comparable discussion.
British opponents of immigration restriction could only hold out so long, however, in the face of this global trend. The Aliens Act was passed in 1905 aiming to restrict the entry of European Jews. Historians have long assessed the Aliens Act as a high point (low point) of British anti-Semitism. But the law was more ambiguous than this. For hiding inside the statute itself was an asylum clause that enabled the entry of persons religiously or politically persecuted. It read thus: ‘[I]n the case of an immigrant who proves that he is seeking admission to this country solely to avoid prosecution or punishment on religious or political grounds or for an offence of a political character, or persecution, involving danger of imprisonment or danger to life or limb, on account of religious belief, leave to land shall not be refused on the ground merely of want of means, or the probability of his becoming a charge on the rates.’
This was a compromise clause, the result of lobbying by Jewish MPs, including Lord Rothschild, and Liberal MPs such as Churchill. The job of implementing the new law from 1906 fell to William Gladstone’s son. It was not an easy task, given that Britain had no border control infrastructure to speak of. But one of his earliest instructions to authorities on the ground was that claimants of religious persecution be given the benefit of the doubt, and be permitted to enter without any of the other restrictions applying.
British international lawyers at the time hailed this as the first codification of an individual’s right to asylum (as opposed to asylum being bestowed as the privilege of a state). It also made American legal scholars understand their own federal law as ‘rigid and inelastic’, perhaps requiring relaxation ‘as a concession to humanity.’ In fact, by World War I, both the US and the UK hardened their laws on immigration and aliens, the British repealing the Aliens Act and replacing it with an Enemy Aliens statute.
It is common for historians to view the 1905 Aliens Act as the sinister thin edge of the immigration restriction wedge. But scholars and policy makers might do well to focus on the counterintuitive history of the statute, which codified, albeit for a short time, the right to asylum when in danger of religious or political persecution or prosecution. Of all the global locations where race-based immigration restriction laws proliferated c. 1900, it was in the British parliament, behind the scenes in Whitehall, as well as in the East End, that resistance was strongest and clearest. Is this not the history that should hold current policy makers to task?
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