Egypt’s parliament has passed a new migration law that will criminalize people smuggling for the first time in the history of Egyptian law, weeks after a major migrant boat tragedy off the coast of Rashid, in Beheira, left up to 300 people dead or missing in the Mediterranean.
The law was approved with a majority of 402 votes on October 17 and is expected to be signed off by President Abdel Fattah al-Sisi soon, and put into effect in just a few months.
It was drafted and submitted by the National Coordinating Committee for Combatting and Preventing Illegal Migration (NCCPIM), an inter-ministerial committee comprising 19 government bodies set up by interim Prime Minister Ibrahim Mehleb in 2014. Since its foundation, the NCCPIM’s main purpose has been to draft a migration law, but it has also prepared a 2016-2026 “national strategy,” conducting field studies in governorates experiencing large-scale Egyptian economic migration.
The NCCPIM held a series of consultation sessions with officials, migration experts and NGOs during the drafting process, including the United Nations High Commissioner for Refugees (UNHCR) and the International Organization for Migration (IOM).
“I’ve heard about this law but the threat of prison or the risks of our work are not enough of a deterrent when the gains are so great.”
A copy of the final draft of the law, seen by Mada Masr, outlines the various smuggling crimes that will be penalized, including founding, organizing or leading an “organized crime group” for the purpose of smuggling migrants. A prison sentence and hefty fines, ranging between LE200,000 and LE500,000, are to be imposed on anyone smuggling people and using arms in the process, or smuggling women, children, or people with disabilities, or putting the lives or well-being of smuggled migrants at risk through a crime.
Life sentences will be given to smugglers if the crime results in the death, injury or permanent disability of migrants, if there are more than 20 migrants smuggled in one trip, if a perpetrator uses weapons to resist authorities and if a perpetrator uses children to commit the crime. The law also stipulates protective provisions for unaccompanied minors and establishes a fund that will purportedly use money confiscated from smuggling networks to aid refugees, asylum seekers and migrants. The new law will incorporate existing anti-trafficking legislation, Law 64, from 2010.
Asylum lawyer Ashraf Milad praises several aspects of the law, including the linkage of “irregular migration and human trafficking together under one committee,” because it acknowledges “the overlap between the two crimes … but also places the same importance on irregular migration as the crime of human trafficking.”
The law has been welcomed by international NGOs and Egyptian officials. Recently, Sisi talked up the bill at a world-first UN summit on refugees, emphasizing “Egypt’s commitment to supporting efforts in dealing with the migration issue.”
“Let’s all agree that combating illegal immigration should be at the top of our international priorities,” Sisi said. “Let’s also agree that there is no way to stop the flow of illegal immigration, except through addressing its main roots and opening up doors for legal migration.”
The law will “push smugglers to think before committing the crime repeatedly,” former ambassador Naela Gabr says, praising Egypt for passing a “model law” for other African and Middle Eastern countries to mimic in combatting smuggling and irregular migration.
The head of IOM Egypt, Amr Taha, urged parliament to pass the law as a “strong deterrent for smugglers,” after hundreds died off the coast of Rashid last month. “The law safeguards the rights and addresses the needs of smuggled migrants,” Taha said in a statement.
Shortly after the Rashid tragedy, Mada Masr met a local fisherman who has worked on-and-off with smugglers since 1999. The man, who asked to be identified as Sheikh Nader, used to ferry Syrians towards Italy. He says he has joined and left smuggling networks several times, leaving each time out of guilt over people disappearing in the sea. He comes back because the network pressures him and the money is tempting.
“I’ve heard about this law,” he says, “but the threat of prison or the risks of our work are not enough of deterrent when the gains are so great.”
“Those people, and the interests of the bosses can move everything, do anything. You will need more than a law to stop smuggling,” Sheikh Nader adds. “You have an anti-drug law, but do people stop smoking hashish?”
Sheikh Nader believes human smuggling off Egypt’s coast won’t stop when so many people are seeking a better life across the sea, and the gains are so big, whether for the struggling fisherman looking to better support his family, or the lynchpin bosses who get rich off human cargo.
“Many young Egyptians have seen the success of Syrians migrating and reaching Europe. They are trying to cross the sea in the hope of a better life without poverty…and most young people are reaching out to brokers to agree on trips. They come to us,” Sheikh Nader says, implying that smuggling networks are simply providing a desired service. “If someone has decided to migrate, it’s not possible to make them change their minds.”
Although Sheikh Nader says these days he only provides smugglers with locations where they can hold migrants in takhzeen (“storage”) before they take the boats, he is skeptical about whether the law will dissuade people from smuggling.
Others on the north coast aren’t buying the Egyptian government’s claims of caring about the protection of migrants. The way in which the Rashid tragedy was handled by the authorities is one of the reasons for this hesitation.
“I’ve been a fisherman for 20 years and I’ve worked off Libya, Tunisia, Turkey and Greece. I’ve seen the rescue operations [off the coast of Libya]. I’ve seen them with my own eyes. Why are there never helicopters or airplanes scanning Egypt’s coast?” says Shoukry, a long-time fisherman and the brother-in-law of one of the Rashid boat victims.
Shoukry doesn’t believe the Egyptian government really cares about young Egyptians, refugees or otherwise, who are dying off the Mediterranean coast in unprecedented numbers.
Another fisherman, Wael Abdel Qader, from Borg Rashid, helped rescue the survivors. “If the coastguard moved when we reported the incident, they could have rescued hundreds. But they didn’t. We keep wondering why,” he says.
Smugglers are accustomed to adapting to local circumstances, deftly filling security vacuums and capitalizing on emerging markets — even, “building submarines to infiltrate Fortress Europe,” according to the tongue-in-cheek boasts of one Cairo-based simsar (broker) who spoke to Mada Masr last year.
“We will need more than a law to stop smuggling,” says Sheikh Nader. “You have an anti-drug law, but do people stop smoking hashish?”
What about criminalizing victims?
Despite the many promises of the draft law, several questions remain about how much the law will change Egypt’s treatment of non-nationals caught during migration attempts, if at all, given the customary way in which irregular migrants are punitively detained and deported.
Article 2 of the law stipulates that all legal liability for smuggling crimes lies with the smuggler and not the migrant, who is regarded by law as a “victim.” This is consistent with international anti-trafficking laws, as well as various international legal standards — including the Palermo Protocols, which aim to avoid the criminalization of migrants and victims of trafficking.
The Protocol against the Smuggling of Migrants by Land, Sea and Air, adopted by the UN General Assembly in 2000, and ratified by Egypt in 2005, is designed “to prevent and combat the smuggling of migrants … while protecting the rights of smuggled migrants.”
Immigration detention rates have increased year on year since 2013. However, the total number of people detained for migration in 2016 has already surpassed any previous annual total between 2013-2015, according to UNHCR data. By August, the UNHCR had already recorded 3,742 detentions on the north coast of Egypt, compared to 3,635 during the whole of 2015 or 3,063 in 2014.
Charges usually include entering or exiting illegally, using false documents, and, sometimes, posing a threat to national security or public order. They are generally not pursued through prosecution and are mostly used to facilitate administrative detention and deportation.
The rising numbers of migrants being stopped on the north coast shows Egypt is “serious about tackling the issue,” the NCCPIM’s Gabr suggests, adding that border forces are “doing their upmost” to combat smuggling.
An alleged smuggling gang operating out of a fish restaurant in Khaled bin Waleed Street in Alexandria’s eastern Miami neighbourhood was arrested in early October. The area has been used by smugglers for years to transport and temporarily house refugees and migrants before moving them to the boats. Three Egyptians and five Sudanese nationals were arrested —supposedly all part of the same gang. After Rashid, this was a big scoop for the local police.
Except that it wasn’t the case: The Sudanese were looking for their dead relatives. Mayada, a student at Alexandria University, lost her brother Mahmoud and three relatives had arrived from Sudan to help find his body. Another man, a cousin, lived in Egypt.
Mada Masr has seen documents that prove Mayada’s enrollment at Alexandria University this year, as well as a letter the family received from the Sudanese Consulate requesting the public prosecutor identify and hand over Mahmoud’s body.
Three of Mayada’s relatives were deported to Sudan and her cousin was released, because he is registered with the UNHCR in Egypt. Mayada is still detained in Alexandria.
Criminalization isn’t just an issue facing foreigners. After last month’s Rashid tragedy, several survivors were filmed being handcuffed to their hospital beds once back on land. A number of officials and media personalities have also hinted that Egyptian migrants cannot be poor, claiming they can afford to pay smugglers and therefore are somehow untrustworthy, suspicious, or perhaps even deserving of their fate.
“Illegal immigration requires a large sum of money, and I see that with this sum, a citizen can easily start a project in his village,” Cabinet spokesperson Hossam al-Qaweesh said during a phone-in talk show recently. “This can offer him a good income and save him from participating in smuggling operations,” he added.
“The law will enable the prosecutor to start an investigation, and once satisfied that the person is an illegal migrant and not a smuggler, they will be released,” Gabr says, adding, “This question was raised after the Rashid tragedy: ‘Why were they detained as criminals?’”
“The same thing will happen after the law but it will be easier,” thanks to awareness raising and the training of officials by international organizations, Gabr adds.
Caught in the act of migration, refugees, asylum seekers and migrants in Egypt can often find themselves punished or criminalized.
Harder to quantify and document than detentions, the forcible deportation of people caught in the act of migration is another way in which the Egyptian government criminalizes refugees, asylum seekers and migrants. In some cases, the UNHCR loses track of people, especially those detained in Qanater Foreigners’ Prison and another facility in Marsa Matrouh.
The UNHCR noted how difficult it is to keep track of migrants in detention in Egypt and those who have been deported. By August, the UNHCR had recorded just over 900 deportations this year, or 24 percent of total immigration detainees. Nearly 90 percent of deportees were unregistered asylum seekers or migrants either from Sudan or the Comoros Islands.
Any deportations after the introduction of the law will constitute “voluntary returns,” the head of the NCCPIM says, citing Articles 25-27 of the new law, which lays out how the government and partner organizations can assist with the “safe return” to peoples’ origins or third countries. “There is no deportation in the law,” she says. “We’re speaking about voluntary return.”
The Egyptian government has already described such returns as “voluntary” in its communications with the UNHCR over detained individuals, despite the fact that returns are often pushed through by effectively giving a detainee the choice between protracted administrative detention and return — not really a choice.
The UNHCR’s June report on immigration detention trends notes how the Egyptian government had been contacting the Eritrean Embassy to prepare for the deportation of around a dozen Eritrean refugees in protracted detention since last year, “despite the fact that they have all expressed a desire to register with the UNHCR and a fear of returning to Eritrea.”
Egypt’s new anti-smuggling law promises a lot. But the real test will be whether it can be used to properly close in on smugglers, and also protect migrants’ rights.