Seven UN Human Rights Council rapporteurs sent a joint letter to the Egyptian government  expressing serious reservations and outlining a detailed critique of the new asylum law, which was passed by the House of Representatives last month, signed by the President of the Republic, and issued in its final version on 17 December. The letter warned that the law, if applied in its current version, would mean that Egypt's first domestic law regulating asylum would contradict international law and explicitly violate Egypt's legal obligations under the multiple refugee conventions it has signed and acceded to and that became part of the country’s constitution and national legislation.

The 17-page letter was co-authored by former Egyptian ambassador Gehad Madi, the Special Rapporteur on the human rights of migrants; Heba Hagrass, the Special Rapporteur on the rights of persons with disabilities, who is also a former Egyptian MP and former Secretary-General of the Egyptian Council for Persons with Disabilities; the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on freedom of religion or belief; the Special Rapporteur on trafficking in persons, especially women and children; and the Chair-Rapporteur of the Working Group on discrimination against women and girls.

On 14 November, the Egyptian Initiative for Personal Rights (EIPR) and the Refugees Platform in Egypt (RPE) submitted a memorandum to the UN special rapporteurs, immediately after the House of Representatives started discussing the fundamentally flawed bill. The memorandum included a detailed analysis of the articles of the (then draft) law, many of which clearly contravene international conventions on refugee rights and Egypt's legal and international obligations towards refugees, victims of human trafficking, and victims of torture. The law also deviates in more than one aspect from due process guarantees the human rights standards related to fair trial.

The UN rapporteurs’ letter warned about the impossibility of applying the law in its current form in a manner consistent with Egypt's obligations related to the international protection of refugees. It said the law, if applied, would undermine human rights in Egypt and the current protections afforded to refugees within the system in which the United Nations High Commissioner for Human Rights (UNHCR) oversees the asylum process in Egypt.  This is especially likely given the absence of any details about a proposed timeframe for the transition from the current legal framework to the national framework created by the new law, and the transfer of the tasks of refugee status determination and asylum seeker registration to the Standing Committee that is meant to be established thereunder.

The key points of concern raised by the UN experts, which they called on the Egyptian authorities to amend, can be summarised in the following points:

1. Basic protections for refugees and asylum seekers: The letter stresses that the fundamental pillar of international refugee law is the principle of prohibition of forcible return or non-refoulement, which ensures that no one is returned to any country where they may face real threat. The letter reflects a concern that this principle is not clearly stipulated in the new law. The one reference to non-refoulement comes in Article 13 which stipulates for a prohibition of “extradition of refugees” (those who have been granted refugee status) to the country of origin or permanent residence. The letter, however, emphasises that non-refoulement  includes broader protection for anyone facing a real threat of persecution in their country of origin, including refugees and asylum seekers whose claims are still being examined. The letter further emphasizes that the provision of the principle of non-refoulement should be the starting point of the first national asylum law and explicitly stated in the preamble to the law and basic definitions.

In the first part of the letter addressing protection issues and basic definitions, concerns were also raised about unjustified and legally-unclear additions to the wording of the definition of a refugee - which otherwise as based on the 1951 convention definition –, in a way that seems to suggest an increase in the burden of proof on the asylum seeker. The UN rapporteurs also denounced the punitive approach of some articles of the law, including those that criminalize and punish with jail terms the provision of humanitarian aid, housing or shelter to a refugee without notifying the competent police station – Article 37, which we had previously addressed in our above-mentioned policy paper and described as blatantly unconstitutional. The law, the rapporteurs elaborate, also discriminates between an asylum seeker entering the country illegally and an irregular asylum seeker. The letter stresses that conditions in which many, if not the majority of asylum seekers, are subjected to forced displacement leave them with practically no other options than  irregular routes to enter the country and seek protection. This is why Article 31 of the 1951 Convention explicitly prohibits the criminalization of irregular entry into the country for asylum seekers, whose treatment must be distinct to that of other types of migrants and visitors. The letter demands the removal of any form of discrimination or criminalization against asylum seekers who enter the country in an irregular manner.

2. Establishing the Standing Committee and  the frameworks governing its work: The letter criticizes the absence of clarity on the composition and working modalities of the Standing Committee, which is established by the law without a clear definition of its responsibilities, guidelines and frameworks governing its work, especially with regard to refugee status determination. The letter echoes what was mentioned in the previous warning issued by 22 civil society organizations that the process of registration, examination of claims and determination of refugee status is a highly complicated and technical process. And the law as it currently stands  does not make any reference to the legal and procedural frameworks that will govern the work of the Standing Committee and the members of its technical secretariat. It also does not specify how the staff and human resources of the proposed committee will be qualified. In their letter, the UN experts also expressed concerns about the absence of any clear transitional timeframe, the complete absence of information on how the new body will manage currently open claims (i.e., cases subject to examination in the current legal system), and guarantees regarding the legal status of those who were awaiting a decision on their applications to UNHCR before the law is ratified by the President.

3. Protection of victims of human trafficking, especially women and children: The letter refers to the absence of guarantees related to the protection of the rights of persons who have been subjected to the crime of human trafficking, especially women and children, who are most likely to fall victim to human trafficking. The letter expresses real fears that the law will be used to punish them instead of treating them as victims. It reiterates that the principle of non-refoulement also includes legal obligations under the Convention on the Rights of the Child and other conventions outside the framework of international  refugee law.

4. Fair trial guarantees and easy access to justice: The letter draws attention to the fact that the new law gives refugees the right to appeal before administrative courts against deportation decisions, but does not explicitly stipulate their legal right to be present in the country while their appeals are pending. The current wording of certain articles in the law can easily be interpreted to mean that the executive authorities are obligated to deport refugees immediately on the issuance of a negative asylum decision, which renders the article on appeal or any other reference to redress completely devoid of meaning or power.

5. Exclusion grounds, revocation of refugee status and excessive punitive approach: The letter emphasizes the danger of the broad expansion of exclusion grounds as stipulated in the law. It criticises in strong terms the definitions and criteria for exclusion which it described as "broad and contradictory to international refugee law", specifically the grounds stated in Article 8 of the law. The letter stresses that the introduction of “vague and expansive” grounds for exclusion and denial of refugee status, including threats to “public order” and “national security” that the law did not even attempt to define or describe, as well as linking the Egyptian terrorist entities law with grounds for exclusion, risks that the law will be interpreted and used against persons deserving of protection and even against  the very people for whom the refugee legal protection was originally created.

International law and the 1951 Convention, on which the new asylum law is more or less based, defines three broad but exhaustive grounds for exclusion that include only the commission of "non-political" offences in the country of origin or residence. By adding political offences (removing the non-political clause) or provisions that could be interpreted as such to the list of grounds for exclusion; the law poses a potential threat to refugees entitled to protection. It definitely allows for subjective interpretations and for the political leanings and biases of individuals in charge of determining the refugee status to grant or deny protection on such political bases.

The letter warns that the expansion of grounds for denial and then exclusion (or revocation of refugee status), coupled with the absence of clear appeal mechanisms, and with the explicit wording of articles that allow for automatic deportation from the country render the few guarantees against expulsion, again,  ineffective and devoid of meaning.

The UN experts presented a set of recommendations to the Government of Egypt, including granting UNHCR ex-officio membership in the Standing Committee along with other representative bodies of the Egyptian government; amending the definition of refugee included in Article 1 to conform to the original text of the 1951 refugee convention and 1969 African Union refugee convention, without the addition of unnecessary vague language that could allow for abuse; providing for clearer and more robust mechanisms for appeal and seeking, specifically to be able to appeal the Standing Committee’s decisions on refugee status determination; in addition to several other recommendations for detailed amendments to a number of other articles or that can be translated into more detailed provisions to be included in the Executive Regulations.

See the full text of the letter (in English) here: https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=29577