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(Berlin) – Egypt’s first law addressing irregular migration is a positive step toward shielding asylum seekers and migrants from criminal responsibility but fails to affirm important refugee rights, Human Rights Watch said today.

The new law imposes serious penalties for human smuggling activities but lacks guarantees for the rights to seek asylum or to freedom of movement and education. It also does not guarantee protection against refoulement – deportation to a country where the migrant might be at risk of serious harm.

A group of migrants held by Egyptian armed forces at a port in Egypt in June 2016. Facebook

“Punishing human smugglers is an important element for protecting asylum seekers and migrants against abuses,” said Joe Stork, deputy Middle East and North Africa director at Human Rights Watch. “But refugees remain vulnerable unless their fundamental rights are protected.”

The law, in article 2, states that criminal liability lies with smugglers and not migrants, who are regarded as victims, but it remains ambiguous about punishments migrants could nevertheless receive, stating in article 27 that they will be prosecuted “if they commit offenses punishable under Egyptian laws.” Crossing Egypt’s borders without permission can be a crime.

The government should issue regulations clarifying the law and removing the ambiguity regarding whether migrants can be prosecuted, Human Rights Watch said. Parliament should amend the law or pass supplementary legislation to protect basic refugee rights, in line with international standards.

Parliament passed the new law on October 17, 2016, several weeks after a boat carrying people from Egypt capsized in the Mediterranean Sea, leaving at least 300 dead or missing. President Abdel Fattah al-Sisi signed the law on November 7.

The law on “Combating Illegal Migration and Smuggling Migrants” came more than two years after then-prime minister Ibrahim Mahlab established the National Committee for Combating and Preventing Illegal Migration to study the migration issue and draft legislation. The committee head, Naela Gabr, said in a statement that the committee based its work on international standards and treaties ratified by Egypt. The committee also designed the first national strategy addressing irregular migration, with support from the International Organization for Migration. Human Rights Watch was not able to obtain a copy of the strategy.

In a 2014 report, Human Rights Watch said that the Egyptian government needed to increase its efforts to identify and prosecute smugglers who detain, abuse, and torture asylum seekers and migrants, especially Eritreans, in the Sinai Peninsula. A boat originating from Egypt capsized in April 2016, killing about 500 migrants – likely the deadliest incident in the Mediterranean of the year. Neither Egypt nor any other country opened an official inquiry, and Egyptian authorities did not arrest or charge the smugglers, who were Egyptians, according to an investigation by Reuters and BBC Newsnight published in December.

According to the independent news website Mada Masr, the United Nations High Commissioner for Refugees (UNHCR) recorded 3,742 detentions of asylum seekers and migrants on the north coast of Egypt between January and August 2016. Authorities typically do not prosecute migrants, despite sometimes initially charging them with crimes such as illegally entering the country, but often hold them for long periods in administrative detention before deporting them

The new law fails to state how migrants should be treated pending deportation, including where and how they will be accommodated, and sets no time limits for administrative detention.

Significantly, the law does not affirm the principle of nonrefoulement – the right not to be forcibly returned to a country where there is a real risk of persecution, torture, inhuman or degrading treatment, or a threat to life and physical integrity. The UNHCR has described this right as “so fundamental that no reservations or derogations may be made to it.” Egypt is a state party to the UN Convention Relating to the Status of Refugees and its 1967 protocol that enshrine the principle of nonrefoulement.

Article 27 of the law states that the government will “facilitate the safe return of migrants” to their countries or any other country that will receive them. The law fails to affirm Egypt’s commitment under the convention to allow anyone seeking asylum in Egypt, including people intercepted by law enforcement as they try to reach Europe with smugglers to lodge an asylum claim. Authorities should only deport those who do not need international protection.

Refugees in Egypt fall under the authority of the UNHCR in accordance with a memorandum of understanding signed with the Egyptian government in 1954, before Egypt’s accession to the convention in 1981. But the new law does not state how detained migrants who want to seek asylum might access or be referred to the UNHCR or an Egyptian government body to determine their refugee status. The law does not include the term “refugee,” only “migrant.”

Egypt’s border areas are subject to military jurisdiction, and Egyptian forces have in the past carried out an apparent stop-or-shoot policy against Eritrean migrants and asylum seekers trying to reach the Israeli border from the Sinai Peninsula. Egyptian nationals have sometimes been sent for military prosecution for attempting to leave the country irregularly. Egyptian security forces killed 15 African migrants in separate incidents in the Sinai Peninsula in November 2015. In 2005, Egyptian police violently dispersed a sit-in of Sudanese migrants, refugees, and asylum seekers who were protesting in front of the UNHCR’s Cairo office seeking resettlement to other countries, killing at least 20.

Article 8 of the law provides for a prison sentence for anyone who provides accommodation, a gathering place, transportation, or any services to smuggled migrants. By failing to include an exception for family members or humanitarian service providers, this article risks punishing groups and individuals providing humanitarian assistance to migrants.

As of October 31, the UNHCR had registered 49,738 asylum seekers and 140,986 refugees in Egypt. Another 9,000 people were awaiting registration.

Egypt’s new migration law states that the government will provide “appropriate measures” to protect “migrants’ rights,” including their right to life and health care, and would ensure awareness of their right to legal assistance, especially for women and children. The law establishes a fund for “Combating Illegal Immigration and Protecting Immigrants and Witnesses.” But the law fails to adequately address other rights, such as primary education, health care, work, freedom of movement, and access to courts.

In 2013, after al-Sisi, then the defense minister, orchestrated the ouster of former President Mohamed Morsy, Human Rights Watch documented the Egyptian government’s detention and refoulement of Syrian refugees, as well as a sudden change in visa policy that impeded Syrians’ access to the UNHCR in Egypt. Amnesty International documented that many refugees and asylum seekers, especially Syrians and Ethiopians, faced increasing attacks from the public as a result of the political polarization in Egypt. Amnesty said that some asylum seekers were made to wait more than three years to examine their requests. Recent media reports said that many stranded asylum seekers spend months homeless in the streets, vulnerable to abuses such as sexual harassment

The law contains a vague provision that criminalizes encouraging irregular migration, even if it does not lead to any illegal action. This provision could be used to restrict freedom of expression, Human Rights Watch said.

Article 91 of Egypt’s constitution acknowledges the right to “political” asylum for “[any] foreigner persecuted for defending the interests of people, human rights, peace or justice.” This article does not meet the UN definition of refugee or Egypt’s obligations under the UN refugee convention and the Convention Governing the Specific Aspects of Refugee Problems in Africa, Human Rights Watch said.

Egypt should amend article 91 of the constitution to include a right to asylum also grounded in a fear of being persecuted on account of race, religion, ethnicity, and membership in a particular social group, as well as the broader protections under the African refugee convention for people displaced by external aggression, occupation, foreign domination, and events seriously disturbing public order, Human Rights Watch said. The law should be amended so that it and its implementing regulations meet international standards regarding the rights of refugees, migrants, and asylum seekers.

“Egypt’s new immigration law needs modification to ensure that refugees will not to be returned to danger and that they have access to courts, primary education and health care,” Stork said.

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