November 12, 2008

III. Background: Egypt's and Israel's Refugee and Asylum Seeker Populations

The number of migrants in Egypt is currently estimated at between 750,000 and 4 million people, of whom some 43,000 are registered as asylum seekers or have been recognized as refugees.[1] Sudanese are by far the largest group in the migrant population.

Until 2005, Israel was the country of asylum of only a few hundred non-Jewish African refugees and asylum seekers.[2] Since 2006, more than 13,000 refugees, asylum seekers, and migrants, primarily from Eritrea (4290), Sudan (3714), and Côte d'Ivoire (1284), have sought asylum in Israel.[3] The vast majority have entered across the Sinai border between Egypt and Israel. Many paid smugglers who dropped them off within walking distance of the Egyptian side of the border. Although the Egyptian government designates the border as a closed security zone-portions along and to the east of the Gaza Strip and near the Israeli city of Eilat are fenced-much of the border's 266-kilometer length is physically open.

Many Sudanese who make or attempt the crossing into Israel are asylum seekers and refugees who struggled for years to live in Egypt. Other Sudanese migrants appear to have fled from the armed conflict in Darfur and traveled through Egypt quickly on a direct route to Israel. Many Eritreans likewise sought to transit directly through Sudan and Egypt en route to Israel.

Since at least the outbreak of the second Sudanese civil war in 1983, which displaced some four million southern Sudanese and left almost two million dead, Egypt has been host to a large Sudanese population.[4] The war between the government in Khartoum and the Sudan People's Liberation Movement/Army (SPLM/SPLA) formally ended with the Comprehensive Peace Agreement in January 2005. Since 2003, however, a separate conflict in Darfur, western Sudan, has killed 300,000 people and displaced 2.7 million.[5]

Refugees from armed conflicts in and between countries in the Horn of Africa since the 1990s, and from political repression in those countries, have also sought safety in Egypt.

After Israeli public figures likened the situation in Darfur to the Holocaust, then-Prime Minister Ehud Olmert instructed that 500 (later increased to 600) Darfuris be granted renewable temporary residency permits ("A-5 visas") in September 2007.[6] According to UNHCR, as of August 12, 2008 there were roughly 1,200 Darfuris in Israel, which means that at least 600 Darfuris remained without status. The decision bypassed many non-Darfuris with valid refugee claims, as well as at least 150 Darfuris who did not arrive in Israel by the announced cut-off date. The government also granted renewable work permits ("B-1 visas") to roughly 2,000 Eritreans who arrived before December 25, 2007. Eritreans who arrived in Israel after that date began to receive work authorizations in February 2008, but these documents do not permit them to reside or work in Tel Aviv.[7]

International Legal Obligations Toward Refugees

Egypt and Israel are states parties to the 1951 Refugee Convention and its 1967 Protocol.[8] Egypt is also a party to the African Refugee Convention of 1974.[9] As states parties to the framework of international legal protection for refugees, they should not punish refugees fleeing from persecution. They may detain refugees and asylum seekers, but only as necessary to regularize their status, such as by ascertaining their identity and the basis of asylum claims.[10]

International standards further obligate Egypt and Israel to afford detained migrants the opportunity to present asylum claims before deporting them. Asylum procedures should meet minimal standards, including that they be conducted by persons specifically trained in refugee law, who speak a language understood by the asylum seeker.[11] Asylum seekers have the right to appeal rejections of their claims, and states must not deport them before allowing such appeals.[12]

Egypt has no national legislation to enact the obligations it undertook by acceding to international and regional refugee conventions.[13]Under the terms of a 1954 Memorandum of Understanding, Egypt has devolved all responsibility for refugee status determination (RSD) to UNHCR.[14] A possible factor in some migrants' and refugees' choices to flee to Egypt in the 1990s was the fact that UNHCR's Egypt office, as well as private sponsorship programs to Canada, Australia, the United States, and Finland, resettled large numbers of refugees in third countries.[15] In recent years, resettlement from Egypt to third countries has slowed significantly, however. Given the security problems many refugees and asylum seekers face in Egypt and the lack of durable solutions there, Egypt cannot in many cases be said to be providing refugees and asylum seekers effective protection.[16] (For more on security problems and lack of durable solutions, including resettlement, see Chapter IV, below.)

Israel lacks asylum legislation, and in the majority of cases the government grants temporary asylum status on a group basis, depending on the nationality of the claimant (see Chapter VII). In a minority of cases that fall outside this group-based protection procedure, UNHCR adjudicates individual asylum claims and presents its recommendations to a National Status Granting Body that makes final decisions.

The cornerstone principle of refugee law, which is also found in the Convention Against Torture (CAT) and the International Covenant on Civil and Political Rights (ICCPR), prohibits both Egypt and Israel from returning refugees to countries where they have a well-founded fear of persecution (refoulement) or to third countries that might not respect that prohibition.[17] The legal prohibition against refoulement is not limited in application to formally-recognized refugees, but applies to all persons who are outside of their country and are unwilling or unable to return due to a well-founded fear of persecution, and to all persons who would face a substantial risk of torture or cruel, inhuman or degrading treatment on return.[18] In April 2008 Egyptian authorities deported 49 Southern Sudanese, including recognized refugees and asylum seekers, to Sudan. In June 2008 Egypt forcibly returned up to approximately 1,200 Eritreans, at least 740 of whom were arrested and remain in detention at military facilities in Wei, and who face a grave risk of torture and prolonged incommunicado detention.[19]Israel deported to Egypt 48 (mostly Sudanese) migrants in August 2007, and a further 91 migrants in August 2008, despite objections from parliamentarians that such deportees would in turn be deported from Egypt to situations of risk. These various deportations are detailed in the chapters below.

Other international instruments to which both Egypt and Israel are party contain important human rights protections for persons notwithstanding their status as migrants, asylum seekers, or refugees; these are referenced in the chapters below.[20]

[1]Katarzyna Grabska, "Living on the Margins: Analysis of the Livelihood Strategies of Sudanese Refugees with Closed Files in Egypt," The American University in Cairo, Forced Migration and Refugee Studies, Working Paper No. 6, June 2005, http://www.aucegypt.edu/ResearchatAUC/rc/cmrs/reports/Documents/Living_on_Margins_Final_July_2005_000.pdf (accessed September 26, 2008), p. 17.  According to UNHCR figures, as of January 2008, there were 42,887 refugees and asylum seekers in Egypt, including 23,681 Sudanese.  UNHCR, "Fact Sheet - Egypt, 2007/January 2008," copy on file with Human Rights Watch.

[2]According to the Hotline for Migrant Workers, an Israeli NGO that provides legal services to non-Israelis, there were 56 Sudanese in Israel by the end of 2005, and 260 by the end of 2006. See Hotline for Migrant Workers, "Sudanese Refugees in Israel," March 8, 2008, http://www.hotline.org.il/english/news/2008/Hotline030808.htm (accessed August 26, 2008). According to UNHCR figures, in 2002 and 2003 the main groups of refugees and asylum seekers in Israel included 142 Sierra Leoneans and 77 Ethiopians. In 2004 there were 245 Ivorians, 103 Congolese, 68 Sierra Leoneans, 65 Liberians, and 61 Ethiopians. The numbers in 2005 were almost unchanged: 271 Ivorians, 109 Congolese, 73 Liberians, 69 Sierra Leoneans, and 50 Ethiopians. UNHCR Statistical Yearbook (Geneva: UNHCR), editions for 2003-2005, Israel country data sheet, http://www.unhcr.org/statistics.html (accessed October 13, 2008).

[3] According to UNHCR figures, 1,411 persons sought asylum in Israel in 2006 (including 28 Eritreans, 271 Sudanese, and 146 Ivorians); 5559 in 2007 (including 1763 Eritreans, 1688 Sudanese, and 751 Ivorians); and 6,034 from January to September 2008 (including 2499 Eritreans, 1755 Sudanese, and 387 Ivorians). UNHCR Israel figures are on file with Human Rights Watch.

[4]"Millions dead in Sudan civil war," BBC News Online, December 11, 1998, http://news.bbc.co.uk/2/hi/africa/232803.stm (accessed July 1, 2008); "Sudan Civil War," GlobalSecurity.org, http://www.globalsecurity.org/military/world/war/sudan.htm (accessed July 1, 2008).

[5] "Darfur: top UN relief official 'deeply troubled' by attacks on aid workers," UN News Center, August 1, 2008, http://www.un.org/apps/news/story.asp?NewsID=27562&Cr=Darfur&Cr1 (accessed September 8, 2008) (quoting UN Under-Secretary-General for Humanitarian Affairs John Holmes).

[6]Ilene R. Prusher, "Israel to grant Darfur refugees citizenship," Christian Science Monitor, September 6, 2007, http://www.csmonitor.com/2007/0906/p05s02-wome.html (accessed June 10, 2008). The Israeli press cited as a precedent Israeli Prime Minister Menachem Begin's decision to accept 66 Vietnamese "boat people" in 1977, whose case had been likened at the time to the plight of Jews on "refugee ships" seeking asylum from Nazi Germany. See Tom Tugend, "Vietnamese 'boat people' to become Israeli," Jerusalem Post, October 5, 2006, http://www.jpost.com/servlet/Satellite?pagename=JPost%2FJPArticle%2FShowFull&cid=1159193357339 (accessed April 16, 2008).

[7] The Israeli Ministry of Interior-issued documents require Eritreans to reside in areas north of the city of Hadera and south of the city of Gedera. Human Rights Watch email correspondence with Sigal Rosen, Hotline for Migrant Workers (Israeli NGO), September 29, 2008.

[8] Convention relating to the Status of Refugees (Refugee Convention), 189 U.N.T.S. 150, entered into force April 22, 1954, acceded to by Egypt on May 22, 1981, and ratified by Israel on October 1, 1954; and the Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force October 4, 1967 (abolishing the Refugee Convention's temporal and geographic restrictions), acceded to by Egypt on May 22, 1981, and by Israel on June 14, 1968.

[9]Convention Governing the Specific Aspects of Refugee Problems in Africa (African Refugee Convention), 1001 UNTS 45, entered into force June 20, 1974, acceded to by Egypt June 12, 1980.

[10] See the Refugee Convention, art. 31, and the associated UNHCR Revised Guidelines on Applicable Criteria and Standards Relating to the Detention of Asylum Seekers, February 1999, http://www.unhcr.org.au/pdfs/detentionguidelines.pdf (accessed September 28, 2008).    

[11]UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (Geneva: UNHCR, 1979, reedited 1992), HCR/IP/4/Eng/REV.1,  http://www.unhcr.org/publ/PUBL/3d58e13b4.pdf (accessed September 28, 2008).

[12]UNHCR's ExCom, which is currently made up of 76 member States and meets annually to review and approve UNHCR's programmes and advise on international protection and discuss other issues, issued a general conclusion that "the applicant should be permitted to remain in the country pending a decision on his initial request by the competent authority" and "should also be permitted to remain in the country while an appeal to a higher administrative authority or to the courts is pending." UNHCR ExCom Conclusion No. 8 (XXVIII) – 1977: "Determination of Refugee Status," para. (e)(vii).

[13]Article 53 of Egypt's constitution prohibits the extradition of "political refugees," but defines this category as "foreigner[s] persecuted for defending the people's interests, human rights, peace or justice," which is much narrower than the international definition of a refugee as anyone who, "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it." Refugee Convention,  art. 1(a)(2). In practice, by article 53's narrow interpretation of the right to "political asylum," only a handful of cases of very high-level government officials have qualified.

[14] UNHCR signed a Memorandum of Understanding (MOU) with Egypt on February 10, 1954.

[15]One observer characterized this as "one of the largest resettlement programs in the world." See Grabska, Living on the Margins, p. 4.

[16]In a statement to the UNHCR ExCom in October 2004, Director of International Protection Erika Feller clarified that effective protection for refugees is that which, at a minimum, guarantees:

there is no likelihood of persecution, of refoulement or of torture or other cruel and degrading treatment;

there is no other real risk to the life of the person[s] concerned;

there is a genuine prospect of an accessible durable solution in or from the asylum country, within a reasonable timeframe;

pending a durable solution, stay is permitted under conditions which protect against arbitrary expulsion and deprivation of liberty and which provide for adequate and dignified means of subsistence;

the unity and integrity of the family is ensured; and the specific protection needs of the affected persons, including those deriving from age and gender, are able to be identified and respected.

[17] The prohibition against refoulement is enshrined in the Refugee Convention (article 33), the Convention Against Torture (article 3.1), the ICCPR (as derived from article 7), and international customary law. See also Chahal v. the United Kingdom, no. 22414/93, judgment of 15 November 1996, (1996, § 80); the New Zealand case of Zaoui v. Attorney General (2005), Supreme Court of New Zealand,, CIV SC 13/04, judgment of 14 October 2004.Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture), adopted December 10, 1984, G.A. res. 39/46, annex, 39 U.N. GAOR Supp. (No. 51) at 197, U.N. Doc. A/39/51 (1984), entered into force June 26, 1987, acceded to by Egypt on June 25, 1986, and ratified by Israel on October 3, 1991; the International Covenant on Civil and Political Rights (ICCPR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force March 23, 1976, ratified by Egypt on January 14, 1982 and by Israel on October 3, 1991.

[18] Ibid. 

[19] "Egypt: Investigate Forcible Return of Refugees to Sudan," Human Rights Watch news release, May 30, 2008, http://hrw.org/english/docs/2008/05/30/egypt18977.htm; Cynthia Johnston, "UN in frank talks with Egypt on Eritrea refugees," Reuters, June 30, 2008, http://uk.reuters.com/article/homepageCrisis/idUKL30287152._CH_.242020080630 (accessed September 28, 2008); Human Rights Watch email correspondence with Elsa Chyrum, Human Rights Concern Eritrea, August 15, 2008; Amnesty International, "Eritrea/Egypt: Arbitrary detention/Fear of torture and other ill treatment – Up to 1,200 forcibly returned asylum seekers," Urgent Action 225/08, AI Index: AFR 64/004/2008, August 13, 2008, http://www.amnesty.org/en/library/asset/AFR64/004/2008/en/1a74c9f5-69ed-11dd-8e5e-43ea85d15a69/afr640042008eng.pdf (accessed September 28, 2008).

[20] The International Covenant on Economic, Social and Cultural Rights (ICESCR), adopted December 16, 1966, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force January 3, 1976, ratified by Egypt on January 14, 1982, and by Israel on October 3, 1991; the Convention on the Rights of the Child (CRC), adopted November 20, 1989, G.A. Res. 44/25, annex, 44 U.N. GAOR Supp. (No. 49) at 167, U.N. Doc. A/44/49 (1989), entered into force September 2, 1990, ratified by Egypt on July 6, 1990, and by Israel on October 3, 1991; the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), adopted December 18, 1979, G.A. res. 34/180, 34 U.N. GAOR Supp. (No. 46) at 193, U.N. Doc. A/34/46, entered into force September 3, 1981, ratified by Egypt on September 18, 1981, and by Israel on October 3, 1991.