Forum on the new EU Pact on Migration and Asylum in light of the UN GCR
Contribution by Amanda Bisong, Policy Officer, European Centre for Development Policy Management (ECDPM)
3 February 2021
European Union policies have shaped the evolution of migration motivations, patterns and structures across West African states. From slave trade to colonial times, countries within the European Union (EU) have influenced who, where and for how long people in West Africa move. This influence continued in post-colonial West African states with the reduced but available mobility options for West Africans to European countries to study, work or reunite with family.
But these migration policies have become more restrictive over the years. Consequently, the changes in migration policies between EU and West African countries have resulted in changes in migration patterns and decisions of migrants. Although bilateral migration cooperation between West African and EU states has evolved to reflect these changing patterns, such measures have had the effect of externalising migration policies of EU states in West African countries. For most migrants and refugees in the EU that originate from large West-African countries like Nigeria, externalisation of the EU’s migration policies has meant adopting an approach that extends European borders beyond the frontiers of African countries and into their internal territories (into the internal workings of the state). This has far reaching impact on the legal and political systems in these countries and does not necessarily contribute to the intended outcomes of migration cooperation.
The EU identifies Nigeria as a priority country for migration cooperation. However, this cooperation has resulted in several practices with the potential to contradict its regional (ECOWAS), continental and International commitments, including the UN Global Compact on Safe, Regular and Orderly Migration (GCM) and the Global Compact on Refugees (GCR). The focus on return of Nigerian migrants from the EU, for example, has several potential areas for conflicting with the Objective 21 of the GCM which calls for cooperation between countries of origin, transit and destination in facilitating safe and dignified return and readmission, as well as sustainable reintegration. Furthermore, while most asylum seekers from Nigeria, may not be categorised as refugees within the definition of the Geneva Convention on Refugees, they may still require complementary protection or non-expulsion on humanitarian grounds, hence emphasising the need for individual assessment of asylum requests.
The effects of EU external migration management policies on migration in Nigeria and free movement of people in Africa
As the external dimension of the EUs’ migration policies continues to gain traction, their direct and indirect effects can be observed in the national and regional practices, policies and legislations of migration partnership countries including Nigeria. While the EU has failed to achieve a readmission agreement with Nigeria, it has adapted its development cooperation which has yielded more results than formal agreements.
- Changes to national migration legislation and practices
Over the last decade, migration policies and reforms to immigration laws in West Africa have been supported by EU countries, either directly or through international organisations like the International Organisation for Migration (IOM). These national migration policies include sections that address reducing irregular migration from West Africa to Europe. Nigeria is no exception. The national migration policy was supported by international organisations. Although the consultations and inputs were provided by the national stakeholders, the inputs still follow the standard template of most national migration policies, thus raising the question about ownership of the content of these policies.
Most of the West African countries have adopted the UN protocol against the smuggling of migrants, in addition to anti-trafficking laws. These anti-trafficking laws are useful in the region, which is rife with trafficking in persons especially women and children. Although trafficking in the region is mostly linked with economic survival and some cultural practices carried out by ordinary individuals and not necessarily transnational criminal networks. However, the arbitrary interpretation of immigration agencies in implementing laws on the smuggling of migrants have led to restrictive practices with negative effects on the movement of persons with in the country and the region. In Nigeria, national courts have begun to adopt a restrictive interpretation of immigration laws in restrictive ways. For example, a federal high court in Katsina, recently charged twelve persons for attempting to irregularly migrate to Europe through Niger. This is particularly noteworthy as there is no provision in Nigerian law which criminalises attempts to migrate irregularly, either in the Immigration Act or in the Nigerian Criminal or Penal Codes. The migrants were therefore charged with evading immigration clearance while crossing Nigerian borders, based on section 46(3)(b) of the 2015 Immigration Act which states that “if a person… refuses or fails to produce or furnish to any such officer or person any document or information which he is required to produce or furnish to that officer or person under this Act, or otherwise obstructs any such officer or person in the exercise of his functions thereunder; he shall be guilty of an offence.”
Furthermore, an increasingly worrying practice of immigration authorities within the region who have been arresting circular or seasonal migrants for irregular entry and overstay in neighbouring countries, has also been observed in Nigeria. These increased arrests and deportations are in a bid to curtail irregular migration movements in the region. However, “irregular migration movements” are not defined and on the basis of the ECOWAS regulations are subject to varied interpretation by the Member States. More so, deportations are not carried out in accordance with the conditions stipulated in the ECOWAS regulations of 1979 (see article 11), thus flaunting ECOWAS protocols and regional human rights commitments. Through the support of the EU and international organisations (including those implementing the UN GCM), restrictive definitions of irregular migration are adopted with the effect of curtailing or restricting regional human mobility.
2. Focus on returns and readmission: return into unemployment
Current migration cooperation between the EU and its Member States and the Nigerian government is focused on returns and readmission. There is still no readmission agreement between the EU and Nigeria, however Nigeria has several agreements with some EU Member States which are not regularly respected. For the Nigerian authorities, the focus is on exhausting all available local remedies in the host country before return is conducted, while EU countries on the other hand have the preference of conducting returns immediately when a migrant in an irregular condition is identified. Thus, the challenge for both authorities has been to find a compromise between these two positions.
Nigerian nationals are granted asylum in the EU on grounds of complementary/ subsidiary protection or non-expulsion due to humanitarian reasons. In 2019, 4365 out of 29660 applications were granted asylum in the EU in first instance and some after appeal. While some EU Member States authorities may erroneously assume that Nigerian nationals are not entitled to international protection, the violence in the country may necessitate protection under other statuses. This highlights the need for states to ensure that migrants and asylum seekers especially from large migrant origin countries do not fall within cracks of the migrant categories, especially where these do not reflect specific rights, needs or migration realities. More broadly, the case of Nigeria highlights the need to better explore and develop the linkages and protection gaps emerging from a strict application of the division between the GCM and the GCR.
However, while the return of migrants from EU countries is categorised by political gimmicks and uncooperative national authorities, return migration from African countries occurs more frequently and with less hassle. This may be because of the negative and horrific human conditions in which migrants and asylum seekers in neighbouring countries (such as Libya) find themselves. Consequently, while the number of yearly returns from EU countries to Nigeria has fluctuated between 100 – 500 returns, returns from Libya and neighbouring African countries to Nigeria are in the range of thousands . These returns are organised with the support of international organisations such as the IOM funded by the EU or its Member States.
One thing that the governments of both Nigeria and EU countries have failed to consider is the situation in which the returned migrants find themselves in Nigeria. In some communities, the rate of re-emigration is higher because the conditions which migrants return to are much worse than the conditions which motivated them to migrate initially.
For some of these migrants, they may have taken loans to fund their migration, and on their return (without sufficient income and without having been able to earn income at their intended destination), have to begin repaying these loans. However, the employment and business conditions in the country are not such that would enable them to repay these loans swiftly in order to avoid negative consequences. Other migrants, on their return, are given support to start small businesses through micro-credit loans and facilities received from international organisations. However, these organisations fail to acknowledge the difficult business environment and the harsh conditions which limit the success rate and survival of small businesses. Consequently, these businesses do not thrive because of the challenging environment and the high costs of doing business (e.g. lack of power supply, multiple taxation by government agencies, high costs of inputs, high costs of rents etc). Therefore, many returned migrants find themselves in a worse situation than the one they had prior to emigration.
3. Bilateral cooperation on development with a renewed focus on migration
Through bilateral cooperation on development, EU states have intensified their support towards curbing irregular migration from Nigeria to Europe. Although there are several studies that highlight the inconclusive effects of using development aid to address migration-related issues, the practice still continues, with such interventions framed within the narrative of addressing the ‘root causes of migration’, which focus on the drivers that motivate people towards migration. However, this narrative on root causes fails to acknowledge the role of current migration policies and other overarching economic policies (like trade and agriculture) and structural global inequalities in contributing to the current situation. Youth employment and economic empowerment programmes, linked to the so called ‘root causes’, are implemented in ‘migration prone’ communities in order to discourage young people from migrating to the EU. The outcomes of these programmes remain opaque.
The problematic relationship between development aid and migration is further demonstrated by the use of conditionalities to elicit the cooperation of migrant sending countries in their bilateral relations with the EU. Several projects funded under the EU trust fund in Africa provide examples of the use of development cooperation instruments to achieve migration control. In Nigeria, development cooperation to fund migration control can be observed in the training and equipping of Nigerian immigration authorities with the objective of enforcing migration control on behalf of EU countries. . More recently European states have focused on empowering authorities in Nigeria to play a more direct role in restricting migration.
4. Securitisation and militarisation of migration
Through increased cooperation with FRONTEX, West African states have carried out border controls, instituted border management systems and regular travel checks within the region. These interventions are aimed at saving migrants from trafficking networks, being exposed to harm at sea or in the desert, thus motivated by humanitarian and anti-criminal motives. However, this cooperation also has the effect of increasing border checks in the region and in practice, imposing difficulties on the free movement of persons within the region by criminalising migration. This goes against the ECOWAS protocol on free movement.
In Nigeria, migration discussions have become synonymous with terrorism, banditry and smuggling. Consequently, the use of military force to address these challenges and by extension restrict the movement of persons even within the region is justified by the government. These military interventions motivated by the focus on counter-terrorism and anti-smuggling are aimed at reducing transnational organised crime in the region. However, these practices risk exacerbating other factors of insecurity and political instability, such as protests and social disorder by disgruntled youth seeking means to migrate. These interventions are now strongly linked to addressing irregular migration in the region, including controlling irregular migration and promoting border management.
5. Conflict between state and federal governments over the mandate relating to migration
In Nigeria, federal government ministries and agencies are in competition with state level ministries and agencies over access to funding for activities to curb migration and their mandate on addressing issues of migration. Consequently, in states such as Edo, where migration through irregular channels is rampant, there has been a taskforce on migration set up by the government. Beyond economic reasons, migration is equally important in Edo because of the role of the diaspora in governance (the current governor of Edo has received huge support from the diaspora community). Moreover, measures at the state level are being taken to curb irregular migration and support the reintegration of returning migrants into their communities. To ensure the implementation of these measures at the community level, state governments demand direct support from their counterpart development and international organisations. This conflict is also an outcome of EU external migration management policies as it instigates a competition for resources between actors in the Nigerian federal system.
No end in sight? EU’s continued fixation on the external dimension of migration
Presently, West African countries like Nigeria still find themselves confronted by the contradictory demands of two free areas of movement: ECOWAS and the EU. The new EU pact on Migration and Asylum aims to be a continuation of the efforts to externalise EU migration policies in countries such as Nigeria. The crisis is now the new normal as argued by Landau and Freemantle. One of the reasons for adopting this pact stems from and the need to adopt a more ‘human and humane approach’ to migration as emphasised by President von der Leyen in her State of the Union address. However, the recommendations provided by the New Pact in actual practice does not consider the human rights of migrants, which involves trading of migrants between countries and encampment in detention sites before deportation and summary deportation on arrival in the EU. Practices such as these contradict several commitments to which Nigeria and EU countries are signatory at the international level and further may undermine the implementation of the GCM and GCR related objectives. More worrying is the fact that international organisations which support Nigeria in the implementation of its migration commitments are also used to promote the implementation of the EU’s externalisation agenda in the country.
Movement of persons – including Nigerian migrants in various countries on the African continent is important for socio-economic development. However, the current externalisation practices of the EU in several African countries does not bode well for the implementation of regional free movement measures and neither for the much wider continental free movement protocol which has been adopted by 33 African countries and is being pushed by the AU. By extension, this focus on restrictive migration policies and closing the opportunities for available migration channels, contradicts the UN GCMs objective to facilitate safe, orderly and regular migration. For countries like Nigeria, it is important to emphasise the human rights of migrants are respected and that the conditions to which migrants are returned are more stable and make them less vulnerable to exploitation. However, this equally requires introspection on the part of the Nigerian government as well as the EU.