Egypt: Migration and Asylum from a Legal Standpoint

The legal details surrounding the issue of irregular migration through Egypt… The status of the Sudanese and Syrian migrants and the story of those coming from African countries to sneak into Israel across the desert of Sinai.
2020-01-08

Ashraf Milad

a lawyer specialized in refugee rights. From Egypt


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Semaan Khawam - Syria

This publication has benefited from the support of the Rosa Luxemburg Foundation. This text may be reproduced in part or in full, provided the source is acknowledged.

According to the Office of the United Nations High Commissioner for Refugees (UNHCR), citizens from more than 38 different countries have sought asylum in Egypt. Most of those didn’t come to Egypt for recreation or to lurk until they have an opportunity to be resettled in the USA, Australia or Canada, but because they are faced by death threats or arrests in their countries of origin.

Of course, many of them fall into the category of “economic migrants”, but this doesn’t negate the fact that, in their vast majority, they came to Egypt fleeing oppression in their countries of origin.
More than 228 thousand and 941 refugees are present in Cairo under the protection of the UNHCR, according to their official report (June 2018). Around 130 thousand of them are Syrians, 37 thousand are Sudanese, in addition to smaller numbers of Ethiopians, Eritreans, Somalians, Iraqis and Yemenis. The protection of those refugees (which is the joint responsibility of the UNHCR and the Egyptian Government, according to a memorandum of understanding concluded between both sides in February 1954) is subject to the political changes on the ground and to the nature of the relationship of Egypt with the country of origin. This factor is obvious in the way refugees from Sudan are treated, which fluctuates between welcoming or deporting them.

Egypt’s Legal Commitments Towards Refugees

Egypt and Turkey were the only countries in the Middle East who had participated in the drafting of the 1951 Convention relating to the Status of Refugees, and to the Refugees Convention of the Organization of African Unity (OAU) in 1969.

Egypt has also ratified the Conventions against Genocide, the four Geneva Conventions, the Convention against Racial Discrimination, the Convention on the Elimination of all forms of Discriminations Against Women, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the African Charter on Human and People’s Rights, the Convention against Torture and, finally, the first and second optional Protocols of the four Geneva Conventions. Article 91 of the Egyptian Constitution states that “The right to political asylum shall be granted by the State to any foreigner persecuted for defending the people's interests, human rights, peace or justice. The extradition of political refugees shall be prohibited, in accordance with the law”.

The protection of the refugees is subject to the political changes on the ground and to the nature of the current relationship of Egypt with the country of origin. This factor is obvious in the way refugees from Sudan are treated, which fluctuates between welcoming or deporting them.

There is no legislation in Egypt that legitimizes the status of the refugees except for a vague article in the Constitution of 2014 that allows - but does not obligate– the acceptance of the refugee, without referring to any of the international agreements.

Who are the Sudanese Refugees?

There were several waves of Sudanese migration to Egypt which culminated in the aftermath of the coup that brought Omar Hassan Ahmad Al Bashir to power in the late 80s of the last century. Egypt was a transit state for the thousands of Sudanese who had fled crises from the four corners of Sudan (the problems of the Nuba in the North caused by the Kajbar dam, the civil war with the South, the problems of the Beja tribes in the East, in addition to the Darfur crisis that exploded in 2003 in the West).

At that time, 80% of those who were granted asylum in Egypt had the opportunity to resettle in one of the three following countries: the USA, Australia and Canada. By 2004, the UNHCR presented a group of procedures that aimed to consolidate the application of the OAU Convention of 1969 which included a detailed classification of the different asylum cases.

This led to an increase in the number of the registered refugees in Egypt and a decrease in the resettlement opportunities. At the first symptoms of a reconciliation between the North and South Sudan, the Refugee Status Determination interviews were frozen for the Sudanese, especially given the rapprochement between the Egyptian and the Sudanese governments which was followed by a tight security cooperation and increased restrictions on Sudanese political opponents and activists in Egypt. This led to cases of infiltration into the Israeli border and resulted in the emergence of organized smuggling gangs from the Sudanese tribes and the Sinai Bedouins. The situation escalated from smuggling humans to abducting for ransoms or trafficking in human organs.

For the Sudanese refugees, Egypt is easily accessible and close (since the international law states that asylum should be sought in the nearest safe country unless there is a good reason not to do so). There is a facility of movement across the vast borders between both countries and part of the border is practically uncontrollable by the border guards of the two states. Article 31 of the 1951 Refugee Convention provisions for the non-punishment of asylum seekers who have entered the country of refuge in an irregular manner and the UNHCR in Cairo communicates with the Department of Immigration and Passports to regulate the residency of those who stepped into the country in an irregular manner.

Many Sudanese gather in the region of “Ezbit El Haggana” where many of their ancestors had served in the Egyptian army (the Haggana battalions; “Haggana” meaning “camel-riders”). Because of the concentration of the Sudanese population in this region, it is sometimes mistakenly described as the “Sudanese refugee camps in Egypt”.

The Sudanese refugees belong to different tribes and come from different regions. Many opponents of the ruling class come from the North and the South (the Dinka tribes, the Shilluk, the Zande, the Bari and the Bamba, in addition to the Nuba Mountains) have fled to Egypt following the civil war of 1983. So did some of the Beja tribe members from the East (who are part of “the Beja Congress”, an independent political party). Starting from March 2003, thousands of people from the “Darfur” region arrived to Egypt, escaping the genocides and plundering that were committed by the government forces with the help of the Janjaweed militias. Up until 1995, the Sudanese exodus to Egypt didn’t systematically require the assistance of the UNHCR as the Sudanese citizens were exempted from the requirement to obtain a residence permit. But, after the 1995 assassination attempt on President Mubarak in Addis Ababa, this exemption was cancelled and restrictions were enforced on Sudanese people in Egypt. This prompted them to apply for asylum as the Egyptian authorities began to forcefully repatriate those who didn’t hold a permit in the country.

Except for the Abdeen area - in the very heart of Cairo-, the Sudanese people usually gather on the outskirts of the city. Historically, Abdeen was the favorite spot for the Egyptian and Sudanese Nubians who used to work in the Abdeen Palace in the days of the monarchy when both Egypt and Sudan fell under the authority of the Egyptian crown, until Sudan gained independence in 1956.

Many Sudanese also gather in the region of “Ezbit El Haggana” where some of their ancestors had served in the Egyptian army (the Haggana battalions; “Haggana” meaning “camel-riders”). Because of the concentration of the Sudanese population in this region, it is sometimes mistakenly described as the “Sudanese refugee camps in Egypt” (like the time when Angelina Jolie visited the place!).

The refugees, and especially the Sudanese, face many challenges in Egypt. They cannot solely rely on the assistance of the executive partners of the UNHCR in Cairo which are deficit in resources. In the context of an economic crisis, arbitrary arrests, bureaucracy and political imbalance in the country, the UNHCR only provides the minimum services to all refugees and asylum seekers. Many policemen do not recognize the residence permit and it has happened that some of them have even torn it apart asking the refugee to show them a passport. Things get more complicated still when an official letter from the embassy of the country of origin is required from the refugee to obtain marriage documentation. In other domains, like health for example, a refugee with limited resources cannot provide for 50% of their treatment costs – even though the UNHCR agents cover the other half. In the area of employment, the asylum seeker doesn’t get any concession and is treated like any other foreigner who needs to acquire a work permit.

Irregular Migration

Irregular migration from the southern shores of the Mediterranean Sea towards Europe have increased, particularly from the Egyptian and Libyan shores. The latter is the largest departing point for boats carrying irregular migrants. After 2011, the militias required big payments to allow the departures of boats in direction of the Italian shores. This prompted many immigrants to sneak out of Egypt into Libya through the land border (the city of Salloum) in order to reach Europe with lower risks, as the Egyptian authorities and coast guards are more stringent in preventing the departure of such trips.

In Egypt, irregular migration has started to increase in 2013, with boats departing from the ports of Port Said, Kafr El-Sheikh, Damietta, Alexandria, Marsa Matruh and Beheira. There had been several drowning incidents of those boats which are not equipped to carry such a number of migrants. The culminant point of those tragic incidents was the drowning of the “Rasheed” boat in September 2016, which resulted in the death of 204 of the 500 migrants who had embarked on the distressed boat. The Egyptian authorities consequently issued the “law of irregular migration” which was unanimously ratified by the Parliament.

Often, the arrested immigrants get deported, and it happens that some of those deported are immigrants who had applied for asylum in Egypt. In this case, the UNHCR addresses the Egyptian authorities asking for their release according to the 1951 Convention that prohibits the extradition of refugees or asylum seekers to their countries of origin.

The Egyptian authorities and the international organizations working in Egypt started to monitor the steady growth of those who try to leave the country by the sea in an irregular manner. In August 2013, the Egyptian authorities arrested the crew and passengers of a boat which was departing from one of the ports of Alexandria. After that, there were consecutive cases of arrest of refugees trying to depart. The state of chaos and insecuritythat struck the country was a good opportunity for the smugglers, andinthis context, many tried to leave Egypt, particularly the Syrian refugees who, having grasped the gravity of the situation in the country,offered smugglers huge amounts of money to get them to Europe by the sea.

The international reports of the UNHCR and the International Organization for Migration (IOM) have stated that, between August 2013 and October 2014, the Egyptian authorities had arrested 6800 irregular migrants in the Egyptian ports. Those were of Syrian, Gazan, Sudanese, Iraqi, Somali, Eritrean and, of course, Egyptian nationalities. The latter were released immediately by the prosecutor’s office while those of other nationalities were detained for periods of time that may have lasted several months, in accordance with the Egyptian procedures that state that the foreigners’ cases must be presented to the National Security and the Passports Departments.

Often, the arrested immigrants get deported, and it happens that some of those deported are immigrants who had applied for asylum in Egypt. In this case, the UNHCR addresses the Egyptian authorities asking for their release according to the 1951 Convention that prohibits the extradition of refugees or asylum seekers to their countries of origin.

Until now, and despite the detention of over ten thousand migrants, the number of those who managed to reach the European shores over a period of 5 years is estimated to have reached 100 thousand people, knowing that at least 1200 persons have drowned across the Egyptian coasts alone.

What Happens After Reaching Italy or Other European Shores?

According to International Law, after any rescue operation, the European authorities prepare a temporary shelter for the migrants, then conduct interviews to determine their situation and whether they really are asylum seekers or economic migrants. After that, legal actions are taken.

The European authorities do everything in their power to prevent the arrival of migrants to their shores, so that they don’t find themselves confronted with a fait accompli and therefore have to comply with the international and humanitarian commitments that oblige their reception.

During the Gadhafi era, millions of euros were paid to “strengthen the Libyan fleet” which was precluding the crossing of those fleeing their countries to Europe through the Libyan coast.

According to the testimony of one of the detainees, when the captain of the boat arrives into the Italian territorial waters, he would send a distress signal. The captain gets arrested, as he is not an asylum seeker and cannot benefit from the same legal protection as the migrants on the boat.

Some European countries have started to conclude agreements with southern Mediterranean countries - such as Egypt-, so that the migrants who have been rejected as refugees are absorbed back in these countries. In the case of Egypt, the agreement also includes supporting the increase of the penalties on the smugglers - thus expanding the law ratified in 2016 to include a characterization of the different cases of irregular migration. If convicted, the imposed penalties can reach thousands of dollars and long-term imprisonment with the possible confiscation of the boat.

To date, no cases of returning migrants to Egypt have been recorded. It is believed that only those with unknown nationalities will be sent back, as many of the irregular migrants deliberately tear up their passports so that the authorities of the country of arrival cannot repatriate them to their countries of origin if their situation fails to meet the required conditions for asylum seeking. The European countries have commissioned Frontex (The European Border and Coast Guard Agency)to investigate these irregular migrants in order to identify their countries of origin before repatriating them.

The Infiltration into Israel

The infiltration from Egypt into Israel through the desert of Sinai started in 2004 and coincided with the frustration of many migrants with the reduction of the resettlement program and the implementation of the 1969 Refugees Convention which does not entail any relocation outside of Egypt. In addition, the interviews with the Sudanese migrants were frozen following the peace negotiations between North and South Sudan.

The cases of infiltration started slowly and culminated in 2005. Most of them were of migrants from South Sudan, Ethiopia, Eritrea, in addition to a small number of Somalians and bearers of other African nationalities such as Liberians, Sierra Leoneans and Ivoirians. What they have in common is that they are not Arabs and therefore do not feel affiliated with the ongoing conflict with Israel. Rumors had it that high-ranking officials were involved in those migrations which became more regular. The rumors were strengthened by the fact that the route to Sinai goes through many checkpoints and that a car or a bus full of African passengers should alert suspicions unless the smuggler is an influential person. Most of the time, the migrant arrives to the border point with the help of the Bedouins, then ventures into the Negev desert where the Egyptian border guards have instructions to shoot any infiltrator. Around 230 persons have been killed until 2013. The number of those who arrived to Israel is estimated to be around 20 thousand. Israel has refused most of them because they had already applied for asylum in Egypt, the first country they had reached.

Because of the growth of this phenomenon, the Egyptian authorities have imposed harsher sanctions on the cases of infiltration. The Act 89 on Foreigners of the year 1960 was amended by the act 88 of the year 2005 which multiplied the punishment and pecuniary fines.

On many occasions, Israel has voiced its “disappointment” with the Egyptian side “which does nothing to curb this phenomenon”. An agreement was signed between Cairo and Tel-Aviv to send back part of those infiltrators to Egypt.

The content of this publication is the sole responsibility of Assafir Al-Arabi and Rosa Luxemburg Foundation cannot accept any liability for it.

Translated from Arabic by Fourate Chahal Rekaby
Published in Assafir Al-Arabi on 23/08/2018

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