End of mission statement of the UN Special Rapporteur on the human rights of migrants, Felipe González Morales, on his visit to Niger (1-8 October 2018)

French

Niamey, 8 October 2018 

Good afternoon and thank you for coming,

I would like to start by thanking the Government of Niger for the invitation extended to me to undertake a visit to the country from the 1st to the 8th of October 2018. This is the first visit conducted by my mandate to the country. The objective of my visit was to assess the laws, policies, practices and agreements adopted and implemented by Niger in respect to migration and their impact on the human rights of migrant women, men and children. This includes the role played by international organizations and donors, as well as by other States with regard to Niger’s migration policies.

During my eight-day visit I met with multiple stakeholders, including migrant persons, asylum seekers and refugees, in Niamey and Agadez. In the capital I met with the Ministers of Interior and Justice, representatives of the General Directorate for Civil Status, Refugees and Migrants, the General Directorate for Human Rights, the National Commission and the National Agency against Smuggling and Trafficking in Persons, the National Police, and the National Human Rights Commission. I also met with the representatives of UN agencies, funds and programmes, international donors, civil society, and local and international NGOs which provide assistance to migrant persons in vulnerable situations. In Agadez, I met with the Governor, representatives of the regional directorates of humanitarian action and crisis management, promotion of women and children, and civil status, refugees and migrants, the regional prosecutor, and the regional director of the police. 

In addition, in Agadez I visited an IOM transit centre for migrants, a camp of Sudanese asylum seekers and a ghetto. In Niamey, I visited an IOM transit centre for minors, and met with asylum seekers at the UNHCR office. These visits enabled me to hold interviews with migrant women, children and men victims of human rights violations and in vulnerable situations, who share migration routes with other persons also in need of protection.

I am grateful to the Government for the collaboration before and during the visit, and the readiness to engage in an open dialogue on the situation of the human rights of migrants in the country. To everyone who met with me, in particular the migrant persons who shared their stories and often dramatic experiences with me, I want to express my gratitude. I also wish to thank the UN Country Team, in particular UNHCR and IOM, for their support and assistance. 

For decades, migration has been a natural phenomenon of the economic, social and cultural reality of Niger, and migrant persons part of its society. In the framework of the ECOWAS Protocol relating to free movement of persons, Nigeriens have migrated to Western African countries to study and work, and have also received Western African migrants as part of their workforce. Further, over 80% of migration in West and Central Africa is internal to the region. In the past years, and in particular after the fall of the Gaddafi regime in Libya in 2011, Niger has become a major transit country for migrants travelling north and to the Mediterranean. More recently, especially since 2014, Niger has become a transit country for returnees, most of them expelled or forced to return, from Algeria and Libya. 

These returns have put a lot of pressure on Niger, which according to many interlocutors has become “a permanent transit centre” and “the Southern border of Europe” as a result of migration policies adopted in Niger and by third countries, with serious consequences for the human rights of migrants and questions as to their effectiveness and sustainability.

Despite Niger’s hardships due to poverty, limited capacities and security concerns related to neighbouring countries, Niger has displayed an openness, generosity and solidarity in receiving migrant persons in vulnerable situations, asylum seekers and refugees in need of international protection, setting the example for many other countries and regions around the world which have been taken over by xenophobic and anti-migration discourses and practices.

In particular, I would like to highlight the generosity showcased by Niger in accepting the evacuation of refugees and asylum seekers released from appalling conditions in detention centres in Libya - including children who are held in detention together with adults - and for allowing and providing space for a humanitarian centre for Sudanese victims of war. 

While I commend Niger’s commitment to international solidarity to assist these persons in need of international protection, I also call on the international community to assist Niger in this daunting task, strengthen the capacities of Niger in this regard, and assume their international human rights obligations and shared responsibility vis-à-vis this vulnerable population. 

Let me now turn to the main measures adopted by Niger in respect to migration management, and their impact on the human rights of migrants. 

The adoption and implementation of the Law against the illicit smuggling of migrants and its impact on the human rights of migrants

One of the main measures adopted by the national authorities in respect to migration is the Law concerning the illicit smuggling of migrants (Law No. 2015-36) of 26 May 2015. According to official authorities and IOM data, since its implementation in 2016 the number of migrants who migrate north to Algeria, Libya and the Mediterranean has significantly decreased (e.g. from 333,891 in 2016 to 43,380 in 2018, according to IOM data based on monitoring trends in Arlit and Seguedine). While IOM data suggests that onward movement to North Africa may have slowed down, it does not reflect the number of people who still move on shifting routes as a consequence of tighter controls that lead migrants to move around data collection points. 

Advocates of the law argue that this decrease has contributed to save lives of migrant persons who engaged in perilous journeys through the Sahara Desert, in the hands of smugglers, who are the purported targets of the law. The law criminalizes the activities of those who facilitate the irregular entry, stay and exit of migrant persons, including those who procure or possess fraudulent travel or identification documents and transport passengers without valid travel or identity documents. Even though the alleged purpose of the law is to prevent and combat the illicit smuggling of migrants and to protect migrants’ rights, the law allows for the detention of migrants subjected to illicit smuggling, without clarifying the grounds for such detention, which is of serious concern.

In reality, the implementation of the law has resulted in a de facto ban of all travel north of Agadez, e.g. in violation of the freedom of movement of ECOWAS nationals. Further, the lack of clarity of the law and its implementation as a repressive - instead of protection - measure has resulted in the criminalization of all migration upwards and has pushed migrants into hiding, which renders them more vulnerable to abuse and human rights violations. During my visit to Agadez I heard accounts of migrant persons, including unaccompanied migrant children, who live in very poor conditions in ghettos. They only dare to go out at night because at times they are stopped by the police on the street, raided at their homes, and arbitrarily arrested, only to be released after some days, often in exchange of a bribe. Access to food, shelter and health is extremely difficult for them, though a few NGOs try to assist them with healthcare. 

In the case of migrant women, the law on illicit smuggling of migrants has rendered them more vulnerable to fall victims of sexual abuse and exploitation. Indeed, I have learnt with concern that there are migrant women who get trapped in Agadez without being able to move further north in their migration journey. These women, due to lack of access to means and the most basic services, are forced to go into prostitution in order to survive. 

Despite the harassment, intimidation and human rights violations, most of the migrants I met have not given up their plans to migrate. For them, the law has made migration riskier, longer and more expensive, and subject to more human rights violations. Indeed, according to various sources, the law has not stopped or decreased migration, but instead it has pushed it underground and diverted the migration routes from Niger to the north through Chad and Sudan, or to the Western Mediterranean route.

During my visit, I heard concerns from different sources, including some official authorities, about a series of flaws and challenges in the implementation of the law on illicit smuggling of migrants. Among them are its misguided interpretation and use by law enforcement and judges; insufficient work on prevention and awareness-raising among law enforcement and the population; lack of coordination and clarity regarding the role of each State actor, and insufficient clarity of the provisions of the law. Indeed, based on the law, it is not clear who is the victim and who the perpetrator. Moreover, smuggling is often confused with trafficking offenses, and this confusion is used to further criminalize and repress migration, including irregular migration.

In addition, independent monitoring of the impact of this law and its implementation on the human rights of migrants is very limited, due to, among others, the lack of resources of the National Human Rights Commission and civil society organizations to conduct monitoring. These key actors would highly benefit from support of international partners in the fulfilment of this essential task.

Collective expulsions of migrant persons from Algeria to Niger in violation of international law 

According to IOM estimates, since 2014, 35,598 Nigerien migrants have been expelled from Algeria to Niger, and the number of expelled migrants has increased steadily each year (from 1,354 in 2014 to 12,177 in the first 9 months of 2018). The expulsions started in 2014, and were targeted at Nigerien women and children in vulnerable situations, mostly from Zinder region, who migrated periodically to Algeria for begging purposes. Soon after, the Government of Niger requested Algeria to be notified of these expulsions in advance. Over time, Algeria started to also expel Nigerien migrant workers, which prompted further discussions and commitments among the Nigerien and Algerian authorities for the repatriation of Nigerien migrant persons from Algeria. These discussions and commitments are not public, which raises serious concerns in terms of transparency and accountability. 

Allegedly, based on these bilateral commitments, with very short notice (maximum one day), Algerian authorities inform Nigerien authorities of the arrival of convoys of Nigerien migrants from Algeria to Assamakka, the first Nigerien town after the border with Algeria. Once in Assamakka, the Nigerien migrants are transported by IOM and escorted by the Nigerien army to Agadez, from where they are returned to their regions and communities of origin. In the absence of individual risks assessments and due process guarantees, these expulsions do not respect the fundamental principle of non-refoulement and are contrary to international law. Reportedly, Nigerien authorities have expressed concern to Algerian authorities about the conditions in which Nigerien migrants are returned from Algeria.

Moreover, since 2017, Algeria is also conducting collective expulsions of non-Nigerien migrants (from Cameroon, Ghana, Guinea Conakry, Nigeria, etc.) to Niger without any notice - which has prompted numerous protests of Nigerien authorities to their Algerian counterparts.

Indeed, according to estimates, since September 2017, more than 8,000 West African migrants have been expelled from Algeria to Niger (4,666 between January and July 2018), with a pick of expulsions in spring 2018. During my visit I heard numerous testimonies of migrant women, children and men who have been victims of these illegal expulsions from Algeria to Niger. According to their accounts, which reflect the same modus operandi, migrants from West African countries such as Cameroon, Ghana, Guinea Conakry, Mali and Nigeria, many of whom have been living and working in Algeria for years, with children born and schooled in the country, are raided in their homes by the police in the middle of the night, beaten up, arrested and brought to police stations, detained, identified, loaded in buses and transported until Tamanrasset, the last Algerian city before the border with Niger. These migrants, victims of racial intimidation, discrimination and persecution in Algeria, are not given even the chance to dress up, pick up their belongings and collect their live savings before being expelled to Niger. As a psycho-social expert who provides assistance to them said, “There is no further humiliation that a human being can endure.” 

Once in Tamanrasset, the non-Nigerien migrants are put in trucks and dropped on the so called “point zero”, 15 km from the border with Niger. From there, migrant women, children and men are forced to walk in the desert for approximately 25 km all the way to Assamakka, without any assistance from Algerian or Nigerien authorities. In Assamakka, the distressed migrant persons are left to their own devices to reach Arlit, where the only assistance that they can find is at the IOM transit centre through its “Assisted Voluntary Return” (AVR) program and some NGOs that started working there such as MSF. Indeed, the Government of Niger, despite its international obligations, and due to its stretched capacities, has delegated IOM the response to the situation of non-Nigerien migrants expelled to Niger. 

I have collected testimonies of West African migrant women expelled from Algeria who arrived at IOM transit centres in appalling conditions, including pregnant women bleeding, and under complete shock after their long walk through the desert. One of the migrant women lost her 4-year-old girl while in the IOM transit centre – she was completely distressed because she could not come to terms with the idea that her beloved child, having been born and schooled in Algeria, was dead because of racial discrimination, arbitrary arrest and illegal expulsion. These women are in need of psycho-social support and access to sexual and reproductive health services.

Let me be clear: these collective expulsions from Algeria to Niger are in utter violation of international law, including the fundamental principle of non-refoulement and due process guarantees, and must stop immediately. Therefore, I call on the Government of Algeria to abide by its international obligation and halt with immediate effect all collective expulsions of migrants to Niger.

The externalization of migration management of Niger through IOM

Due to its limited capacities, since 2014 the Government of Niger relies largely on IOM to address the situation of migrant persons who are expelled from Algeria or have been forced to return from other neighbouring countries such as Libya and Mali. Upon their arrival at one of the six IOM transit centres, and provided that they sign up for their return, IOM offers them shelter, food, medical and psycho-social assistance, travel/identity documents, and transport to their countries of origin. Since 2015, 11,936 migrants have been returned to their countries of origin as part of IOM’s AVR program, most of them to Guinea Conakry, Mali and Cameroon.

During my visit I had the opportunity to talk to numerous men, women and children in IOM transit centres in Agadez and Niamey who have signed up for the AVR program. Some of them indicated that they could not put up with any more human rights violations (they had been victims of racial discrimination, arbitrary arrest, torture, collective expulsion, sexual and labour exploitation during their migration journey) and the difficult situation in the transit centres, and wished to return to their countries of origin. Others indicated that they had signed up for AVR because it is the only assistance offered to them, and many of them told me that as soon as they return to their countries of origin, they will try to re-migrate. 

Indeed, when AVR is the only option available to those who have been expelled or forced to return, and no other real alternative is provided for those who do not want to sign up for it, including those who are in vulnerable situations and have been victims of multiple human rights violations, questions arise as to the genuine voluntary nature of such returns if one considers the whole journey they have gone through. Moreover, signing up for an AVR program cannot override the fact that most of these migrant persons are at the origin victims of illegal expulsions, contrary to fundamental principles of international law. 

Another issue of concern is the lack of human-rights based effective individual assessments conducted to migrant returnees in compliance with the fundamental principle of non-refoulement and due process guarantees. Many of the migrant persons who have signed up for AVR are victims of multiple human rights violations (e.g. suffered during their migration journey and in transit countries) and are in need of protection based on international law. However, very few are referred for asylum/refugee status determination, and the rest are processed for return. The ultimate goal of AVR programs, namely the return of migrants, cannot override human rights considerations for each case. This also raises concerns in terms of accountability, as well as access to justice and remedies for migrant victims of human rights violations.

Other major issues of concern:

The lack of protection of unaccompanied migrant children

During my visit I interviewed many children who left their homes due to poverty and lack of opportunities, and engaged in the migration journey without their parents, family members or any adult in charge of them. These unaccompanied migrant children have been victims of all sorts of human rights violations during their migration journeys through Mali, Algeria, Libya, Chad and Sudan, from harassment and intimidation, to abuse, ill-treatment, labour exploitation, arbitrary arrest and detention, expulsion, and lack of access to food, water, health, shelter and education. Despite their particular vulnerability, they all indicated that they never benefited from any special protection and were treated like adult migrants by State authorities and armed groups. They did not get the assistance of international organizations either.

These unaccompanied migrant children, once forcibly returned to Niger or trapped in Niger in transit to other destinations, do not have access to any child protection system. Furthermore, there is no guardianship system in place to protect their best interests and rights. The Nigerien children who are returned from Algeria are taken care of by the Nigerien authorities with the support of UNICEF and reunited with their families. In the case of the non-Nigerien unaccompanied migrant children who are expelled from Algeria or forced to return from other neighboring countries (Libya), they are referred to IOM, and once they signed up for the AVR program, they receive basic assistance to ensure their return to their countries of origin, so the best interest of the child determination assessment is conducted with return as the ultimate goal. As for those unaccompanied migrant children who do not want to return to their communities or countries of origin, there is no system in place to identify and refer them to child care services – rendering them more vulnerable to abuse, violence, exploitation and child rights violations.

The lack of access to justice for migrants 

Migrants in Niger, including those in vulnerable situations, do not have minimum access to justice. Due to the general poverty in the country, lack of effective access to justice applies to a large part of its population; however, migrants are a specific vulnerable group to abuse, exploitation and rights violations. During my visit to Agadez and Niamey, most migrants, amongst them minors, stated having been victims of arbitrary arrests and/or corruption by the official authorities. While being in detention, which lasted often up to several days, none of them, including children, received access to legal aid and/or legal representation. 

Although I was told that the Agence Nationale d'Assistance Juridique et Judiciaire (L'ANAJJ) is in charge of providing free legal assistance to vulnerable groups, I was also informed that the capacities and the funds are insufficient to provide effective legal assistance. In addition, both amongst migrants as well as among state officials there is a limited understanding of migrants’ rights and insufficient means to conduct human rights monitoring activities, for instance by the NHRI antenna in Agadez. 

Role of the international donors and in particular the EU 

Although key state officials stressed that the objective of reducing migration towards the north is mainly a national policy decision, there is a need to highlight the role and the responsibility of the international community and donors in this respect. Indeed, several sources stated that Nigerien policy on migration is heavily influenced and pushed primarily by the demands of the European Union and its Member States to control migration in exchange for financial support. For instance, the fact that the European Union Trust Fund provides financial support to IOM largely to sensitize and return migrants to their countries of origin, even when the voluntariness in many cases is questionable, compromises its rights-based approach to development cooperation. In addition, from my exchange with the European Union, no support is foreseen for those migrants who are neither refugees nor have agreed to be voluntarily returned to their countries of origin. Furthermore, the EU’s role and support in the adoption and implementation of the law on illicit smuggling of migrants calls into question its ‘do no harm' principle given the human rights concerns related to the implementation and enforcement of the law. 

Preliminary conclusions and recommendations

Due to its relative security and stability, Niger has become a hub for migration to the north. In recent years, the situation of migrants in the country has worsened as a result of migration policies and agreements adopted by Niger with other countries, especially the EU, which are resulting in violations of the human rights of migrants through their criminalization, harassment, arbitrary arrest and detention, and forced returns. This has added lots of pressure on the Nigerien authorities regarding its migration management, when they are already stretched by limited capacities. The international community must be aware of this and increase its support to re-focus Niger’s strategy on migration management, making it compliant with its international human rights obligations and strengthening relevant national institutions and capacities to create a well-functioning system of protection for asylum and other needs. In addition, an appropriate institutional framework for managing large movements of migrants is needed, instead of externalising migration management to third parties that escape any accountability. 

Indeed, according to international human rights law, Niger has an obligation to protect all migrant persons in its territory, regardless of their status or nationality. Due to its limited capacity, the international community must step up its support to Niger in addressing the root causes of migration and providing regular and safe pathways for migration. This should be done instead of adopting policies that lead to human rights violations and are aimed at banning all migration to the north, turning Niger into a hub for processing forced returns, with complete disregard of international human rights law and raising questions as to the effectiveness and sustainability of these measures in the long term.

Preliminary Recommendations:

To the Nigerien Government:

• Reform the law on illicit smuggling of migrants to clarify its purpose and provisions, and ensure that it does not criminalize or victimize migrant persons and is fully in line with international human rights norms and standards;
• Adopt a national comprehensive migration policy that is child-sensitive, gender responsive and fully respects the human rights of migrants as enshrined in both international and regional law;
• Take ownership of the migration policy and strengthen and empower national institutions and capacities to take the lead in the design and implementation of its migration management measures;
• Invest in filling data gaps such as those around underground migration, re-migration, and smuggling and trafficking networks, to develop a systemic picture and evidence-based policies;
• Through fact-based analyses and long-term thinking, reflect on the conceptualizations of migrants and migration that underpin counterproductive and ineffective security policies and result in the criminalization and stigmatization of migrants;
• Ensure the transparency, oversight and accountability of readmission agreements, and facilitate independent monitoring - i.e. by the National Human Rights Commission and civil society organizations -, of pre-removal processes, return, reception and reintegration of migrants according to international human rights standards. In this respect, the National Human Rights Commission should enhance its human rights monitoring activities in Agadez region with regards to migrants;
• Ensure that returns are decided after following a strict procedure which guarantees the confidentiality of information and in which the migrant is duly represented, has access to appropriate legal assistance and interpretation services, and has an effective opportunity to explain why a return would not be in respect of his or her rights;
• In cases of forced returns, conduct human rights risk assessments upon arrival in order to determine the necessary protection and assistance needs if migrant persons and prevent violations of their human rights in returning countries;
• Adopt and support the implementation of strategies on migrants in vulnerable situations, including through creating mechanisms and resources to ensure that the status of migrants in vulnerable situations can be determined individually, fairly and reliably, and respecting the principle of non-refoulement;
• Unaccompanied children should only be returned when it has been determined to be in their best interests through an appropriate procedure before a competent institution that includes the proper representation of the child. Children must never be detained based on their migration status, and alternatives to deprivation of liberty must be adopted instead;
• Provide accessible complaint mechanisms for migrants, including child-friendly complaint mechanisms for children, as well as legal information and aid in a language that they understand, to ensure their access to justice and remedies for violations of their human rights;
• Ensure prompt, impartial and independent investigations of violations of human rights of migrants;
• Promote regular intra- and inter-regional channels for migration and labour mobility and ensure sufficient regular, safe, accessible, affordable channels for migration are available; and decriminalise illegal border crossings and combat stigma and discrimination associated to irregular migration.

To the Algerian Government:

• Stop with immediate effect the collective expulsions of migrant persons to Niger, their intimidation, harassment, persecution, detention and ill-treatment based on racial discrimination, and ensure their access to justice and remedies, including reparations, for violations of their human rights.

To the Libyan authorities and the international community:

• Release all migrant persons from detention centers where conditions of detention amount to torture and other inhuman or degrading treatment or punishment, notably children who are kept in detention mixed with adults;

To ECOWAS and its Member States:

• Ensure that migrant persons who are ECOWAS nationals and have been victims of collective expulsions from Algeria to Niger have access to justice and remedies, including reparations, by facilitating their access to information, consular services and effective legal representation, e.g. through the establishment of consular services in Agadez region.

To the European Union and its Member States:

• Integrate rigorous human rights, due diligence, monitoring and oversight mechanisms into all external agreements and initiatives abroad and prioritize projects in Niger that will improve the human rights of migrants;
• Fully recognize the push and pull factors of irregular migration, and the EU’s responsibility in managing and mitigating them;
• Take a global leadership role whenever needed in relation to humanitarian and human rights crises and reduce the market for smugglers by increasing, in cooperation with other States, resettlement opportunities;
• Develop and incentivize other regular and safe migration channels, including for workers with varying skills levels, and look at a variety of options for legal migration, such as humanitarian admission, humanitarian visas, temporary protection, family reunification, economic admissions at all skills levels, as well as for job seeking, student mobility and medical evacuation; and increase the number of migrants admitted under existing regular migration schemes;
• All EU programs, policies and technical assistance to Niger concerning migration should further the realization of human rights for all migrants, including those that are neither refugees, asylum seekers or AVR applicants, in compliance with international human rights norms and standards.

To the international community, donors, and UN agencies, funds and programs:

• Ensure that all interventions related to migration issues of UN agencies, funds and programs include a legal protection mandate and a clear protection policy anchored in international human rights law, and fully adopt a human rights framework for their work, with full respect for the human rights of migrants and the ‘do no harm’ principle;
• All UN actors working in Niger are encouraged to reflect on their contribution to the support on mixed migration in Niger to ensure comprehensive UN support;
• Increase coordination amongst UN actors and with INGOS and NGOs to ensure that all migrants, and especially the most vulnerable, are able to exercise their human rights;
• Collect and analyse data on re-migration to assess effectiveness of migration policies and programs, including the AVR;
• Develop a joint UN fundraising strategy for projects related to migration and ensure the added value of each UN actor is reflected therein and is grounded on the human-rights based approach to migration.

Thank you for your attention.