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II. Recommendations

To the Government of Egypt

• Order border police to use lethal force only as a proportional and necessary response to a threat to life.
• Conduct a thorough and impartial investigation into the reported fatal shootings and beatings of 33 Sudanese and other African migrants, and make the results public. Prosecute any officer identified as having unlawfully killed or injured any migrants, or given orders to do so, and hold accountable any official with oversight responsibility for such incidents.
• Cease using military tribunals to try civilian migrants, refugees, and asylum seekers detained in the Sinai.
• Guarantee UNHCR access to all asylum seekers and refugees in official custody, as well as to migrants not yet registered with UNHCR who have international protection needs, and guarantee to detained migrants (including migrants who have not yet registered with UNHCR), the ability to contact UNHCR.
• Grant UNHCR unhindered, ongoing access to all detention centers, including those in security zones in the Sinai and near the border with Sudan.
• Cease deporting detained migrants until a system guaranteeing such access to UNHCR is fully functional, and ensure that this system is operational in all detention facilities in which migrants and refugees are detained, including but not limited to those in the Aswan, New Valley, Red Sea, and North Sinai governorates.
• Cease detaining children in regular jails, and pursue alternatives in line with international standards that protect family unity and promote the child’s best interests.
• Allow external monitoring of conditions of detention at detention facilities where irregular border-crossers are held, in particular in the Sinai and along the southern border with Sudan.
• Pursue an agreement with Israel to allow for the reunification of families of refugees and migrants separated at the border.
• Consider steps to allow the local integration of refugees and asylum seekers, including granting refugees and asylum seekers the right to work, and addressing security concerns of refugee and asylum seeker communities.
• Implement a fair refugee status determination procedure with procedural safeguards, along with an effective asylum regime, consistent with Egypt’s obligations in international law.

To the Government of Israel

• Conduct no additional “coordinated returns” to Egypt of persons who cross the Sinai border until:
• Israel institutes a system that ensures border-crossers the ability to present asylum claims, and
• Egypt credibly guarantees that it will (1) respect returnees’ rights under international human rights and refugee law; (2) not return them to countries where they could face persecution; and (3) allow UNHCR to visit all returnees in detention and monitor their conditions.
• Reject or substantially revise proposed legislation dealing with irregular border-crossing to remove provisions mandating immediate returns of migrants to Egypt and for mandatory minimum prison sentences for migrants who cannot be immediately returned.
• Ensure that persons who wish to present asylum claims after crossing the Sinai border into Israel are detained only as necessary to ascertain their identity and the basis of their asylum claims, and ensure that families are not separated in detention.
• Ensure that detention of children is in line with international standards concerning family unity and the best interests of the child.
• Allow external monitoring of conditions at detention facilities where irregular border-crossers are held, in particular the Ketziot facility.
• Implement a fair and expeditious refugee status determination procedure with procedural safeguards, along with an effective asylum regime, consistent with Israel’s obligations in international law.
• Cease future arrest sweeps and detentions of asylum seekers registered with UNHCR or whose status has been regularized, consistent with Israel’s obligations in international law.

To UNHCR Egypt

• Grant refugee status determination procedures to all asylum seekers, not only those with special protection needs, while continuing to grant asylum-seeker status to Sudanese in Egypt as a minimum form of protection from forcible return.
• Work with the Egyptian government to create a system of regular visits to all detention centers where migrants are kept.
• Work with UNHCR Israel to identify members of families of refugees and asylum seekers separated while crossing the Sinai border, with the aim of family reunification.
• Continue periodic meetings with refugee community-based organizations and outreach to improve relations with refugee communities in Egypt.
• Provide technical assistance to the National Assembly to develop a refugee law consistent with Egypt’s accession to the Refugee Convention and Protocol, and assist the government to institute a refugee status determination procedure and asylum regime that meet international standards.

To UNHCR Israel

• Work with UNHCR Egypt to identify members of families of refugees and asylum seekers separated while crossing the Sinai border, with the aim of family reunification.
• Provide technical assistance to the Knesset to develop a refugee law consistent with its accession to the Refugee Convention and Protocol, and assist the government to institute refugee status determination procedures and an asylum regime that meet international standards.

To the international community

• Consider providing more resettlement spaces for refugees in Egypt and Israel.

To the government of the United States

• Ensure that no funding, training, or weapons are supplied to units of Egyptian border police responsible for using lethal force against migrants, asylum seekers, or refugees.

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.¹³Under 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.¹⁹Israel 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

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