Enactment of the Illegal Migration

On 7 November 2016, the Law Countering Illegal Migration and Smuggling of Migrants was issued after having been approved by the Egyptian Parliament (the “Law”).[1] While the Law imposes substantial fines on smugglers, it exempts migrants from any criminal or civil liability. The Law also regulates such cases in which juridical persons shall bear criminal responsibility for smuggling migrants. It holds the person in charge of the management of a juridical person liable, if the crime was committed by one of its subordinates in its name and favour. The Law also considered the juridical person jointly liable for the fulfilment of the financial penalties and compensation that arise as a result of such crime. In addition, it authorizes the court to cease the judicial person’s activities for a year, or – in case of recurrence – to rule for its dissolution and liquidation.

Background

The Law recently issued can be considered as an extension of the Law to Combat Human Trafficking,[2] which was issued in 2010. The new Law addresses some acts similar to trafficking, but additionally fills some legislative gaps with regards to smuggling operations. The Law was initially drafted by the National Coordinating Committee for Combatting and Preventing Illegal Migration (“NCCPIM”), an inter-ministerial committee comprising 19 government bodies set up by the Prime Minister in 2014. NCCPIM has also been mandated with preparing a national strategy for 2016-2026 on illegal immigration.

Details of the Law and its Relationship with Anti-Trafficking

The Law defines "smuggling of migrants" as the illegal "transition" of a person from one country to another for a material/financial or moral benefit, "or for any other purpose". The Law provides for imprisonment and substantial fines ranging between EGP 50,000 – 200,000 or an amount equivalent to the proceeds of crime, whichever greater, for "all those who aid, abet, cooperate in the execution of the crime of smuggling migrants". The Law also increases punishment and fines in some special cases; such as when there are multiple perpetrators, or if the crime was committed by a person carrying a weapon, or if a ship was used in committing the crime by being used it a way that is different from it intended purpose, or if the crime was transnational in nature (a broad term that includes smuggling operations that are planned and executed in more than one country, in addition to those that have effects in other countries). In addition, the Law criminalizes many preparatory acts associated with smuggling operations, such as harbouring or concealing, aiding and abetting the offender, etc. Life sentences and hefty fines ranging between EGP 200,000 – 500,000 are to be imposed on smugglers when links to organized crime and terrorism are substantiated, if the crime results in the death, injury or permanent disability of migrants, or if there are more than 20 migrants smuggled in one trip (or less if there are women, children, or people with disabilities among them). It is worth mentioning that some of the criminal acts in Article 7 fall under "human trafficking" as defined by the anti-trafficking law issued in 2010, which includes in its definition of the crime the "transfer" of any natural person by means of threat, or use of force, or other forms of coercion, or for the purpose of exploitation, which includes the exploitation or the prostitution of others or other forms of sexual exploitation, slavery, or the removal or sale of organs. It should be noted that the punishment of human trafficking is rigorous incarceration (except in special cases where the punishment is increased), which makes the punishment of smuggling in some cases more severe than that of human trafficking. In a move in line with international legal standards of anti-human trafficking, the new Law does not criminalize irregular migrants, and does not exempt smugglers from criminal responsibility even if the migrants consented to the smuggling operation. It is noteworthy that although the Law safeguards the smuggled migrants through exemption from criminal liability, these migrants are often exposed to other charges (not exempted by the current law) such as falsifying documents and entering or leaving the country without permission. The Law, however, includes other protections to witnesses, informants and smuggled migrants.

Economic Aspect of the Law

Although the Law does not address many economic issues related to illegal immigration, such as corporate responsibility in cases of employment of illegal immigrants, Article 14 of the Law regulates the sanctions in the event that the crime was committed in the name and in favour of a juridical person. The Law holds the person in charge of the management of the juridical person liable and mandates the imposition of the same punishment for the original crime, if it was committed by one of the subordinates in his name and favour, if it was proven that he was aware of such crime, "and that the crime has occurred due to a breach of the duties of his job." The same Article also stipulates that the juridical person shall be jointly liable for the fulfilment of any financial penalties and compensation that arise as a result of that crime in addition to granting the court the power to rule for its dissolution and liquidation in case of recurrence.   [1] Law No. 82/2016 on Countering Illegal Migration and Smuggling of Migrants, Official Gazette, Issue No. 44 (bis) (a), 7 November 2016. [2] Law No. 64/2010 on Combating Human Trafficking, Official Gazette, Issue No. 18 (bis), 9 May 2010.