The Aliens Act 1905 and the Immigration Dilemma
| DOI | http://doi.org/10.1111/j.1467-6478.2006.00359.x |
| Author | Helena Wray |
| Published date | 01 June 2006 |
| Date | 01 June 2006 |
JOURNAL OF LAW AND SOCIETY
VOLUME 33, NUMBER 2, JUNE 2006
ISSN: 0263-323X, pp. 302±23
The Aliens Act 1905 and the Immigration Dilemma
Helena Wray*
This article considers the political context, legal framework, and
administrative structures of the Aliens Act 1905. It points out the
contradictions and inconsistencies of the Act and argues that these
represent a wider ambivalence about the merits of control and a
conflict between exclusionary and inclusive impulses. These
inconsistencies, rather than undermining the Act, permitted the Act
to fulfil a number of conflicting unofficial purposes. The article argues
that this ambivalence persists and governments continue to seek to
satisfy all sides leading to apparently incoherent legal formulations
which nonetheless provide for fragile compromises.
INTRODUCTION
On 1 January 1906, the Aliens Act 1905 came into effect.
1
Although not the
first legislation controlling aliens,
2
it was the first attempt to establish a
system of immigration control upon entry. While its limited powers may be
302
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9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*Centre for Legal Research, Middlesex University, The Burroughs, Hendon,
London NW4 4BT, England
H.Wray@mdx.ac.uk
1The account here of the Aliens Act has been dr awn from the following
contemporary and historical texts: A. Dummett and A. Nicol, Subjects, Citizens,
Aliens and Others (1990); B. Gainer, The Alien Invasion (1972); J.A. Garrard, The
English and Immigration: A comparative study of the Jewish influx 1880-1910
(1971); L.P. Gartner, The Jewish Immigrant in England 1870±1914 (1960); M.J.
Landa, The Alien Problem and its Remedy (1911); T.W.E. Roche, The Key in the
Lock: A History of Immigration Control in England from 1066 to the Present Day
(1969); P. Shah, Refugees, Race and the Concept of Asylum (2000); D. Stevens,
United Kingdom Asylum Law and Policy (2004); and R. Winder, Bloody Foreigners
(2004). I have also used, as stated, contemporaneous accounts of the imple-
mentation of the Act in the Jewish Chronicle.
2 See Stevens, id., pp. 19±32 for discussion of earlier forms of anti-alien legislation.
These provided general powers of exclusion and expulsion but did not seek to
establish an administrative structure of entry control.
contrasted with the far more draconian measures of later periods, it has
always had symbolic importance as representing the onset of modern
immigration control, an irreparable breach in the principle of free movement
which permitted all that came after.
3
The Act may have created the first administrative structure to control
immigration but it is regarded as having little other merit. Its provisions were
incoherent and timid when judged by the standards of later control and were
soon superseded. Those affected by the Act never rose much above a
thousand in any one year.
4
It permitted the overwhelming majority of aliens
to continue to land. It seems a pallid and confused attempt at control when
contrasted with the blunt assertion of executive power to be found in the
Aliens Restriction Act that succeeded it in 1914.
This article considers the structure and implementation of the Aliens Act
and argues that its inconsistencies and weakness, far from being unique, are
characteristics that are also present in aspects of modern legislation. This is
because immigration control is the site of multiple and conflicting impulses
that frequently result in fragile and often temporary compromises that do not
bear close critical scrutiny.
The first part of this article considers the contradictory forces which shape
immigration control and which governments have to manage. These include,
to varying degrees, the electoral desire for effective immigration controls,
the economic and other benefits of immigration, and the necessity of main-
taining a public commitment to humanitarian principles. The result tends to
be legal frameworks which are, to an extent, apparently incoherent but which
permit, at least temporarily, the maintenance of a balance between these
forces.
In succeeding sections, the background, the provisions, and the operation
of the Aliens Act 1905 are considered. These suggest that the commitment to
exclusion was partial at the level of policy, law, and implementation. While
equivocation was more evident than in later periods, due to the novelty of a
system of control, a constant factor is the tension between restriction and
liberalization and the inconsistent structures and unofficial purposes to which
this gives rise. Manifestations of this same conflict in more recent eras, in
particular in relation to the asylum system, are then briefly considered.
Despite its relatively transient nature and its limited impact, the Aliens
Act has resonance for modern immigration control. This is not only in terms
of specific legislative provisions, although echoes are present,
5
but in its
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3S.Juss, Immigration, Nationality and Citizenship (1993) 32; Dummett and Nicol,
op. cit., n. 1, p. 104.
4In1909, a high point in the operation of the Act, 1,465 (out of 20,471) applicants
were rejected at first instance and 1,347 on appeal to the Immigration Boards
(Garrard, op. cit., n. 1. at p. 107).
5 These include the retention of discretionary powers by the Home Secretary, the
appeals structure, and the liabilities upon ships' masters, all discussed later in this
article.
ß2006 The Author. Journal Compilation ß2006 Cardiff University Law School
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