The Future of Immigration Law and Policy in Nigeria (Part 1)

The Keynote Address delivered by Professor Epiphany Azinge, SAN on March 13, 2021 at the Inauguration of the Centre of Immigration Law Studies, Gregory University, Uturu, Abia State, renamed Professor Epiphany Azinge Centre for Immigration Law and Policy in his honour. This Address is particularly pertinent today, in light of the influx of criminal aliens causing mayhem across the length and breadth of Nigeria

Introduction

When my seminal and magisterial work AZINGE’S IMMIGRATION LAW AND PRACTICE IN NIGERIA was published in 1998, it was clearly the only work on immigration law in Nigeria. For me, it was a good faith effort to help develop Nigeria’s corpus juris on Immigration Law, and shift the frontiers of our jurisprudence on the subject-matter. I never imagined that almost 21 years after its publication, the book will attract such an enduring recognition that has culminated in the inauguration of a Centre of Immigration Studies in Gregory University.

My keynote address today is titled The Future of Immigration Law in Nigeria. This topic is quite instructive. Anyone familiar with my book on immigration, will easily observe that Chapter 13, which is the last chapter, is titled The Future of Immigration Law of Nigeria. It is indisputable that a lot of progress has been made, since my book was published.

A new Legislation/Regulation are now in force. Technological advancement has impacted positively on immigration practices. The world has witnessed unprecedented migrant trafficking, and human smuggling. Immigration challenges are critical indices, in addressing the National Security Architecture of our nation. There are certainly Covid-19 dimensions, to immigration challenges. So also, are the overwhelming problems caused by Nigeria’s membership of ECOWAS, and the nagging issues of free movement of goods and persons.

Immigration issues, are never discussed in isolation. In this regard, our conversation will extend to related laws that are inextricably intertwined with Immigration procedures and practices. I propose to dwell on the overarching challenges of citizenship in Nigeria, and its effect on the New Visa regime.

This paper will attempt to adopt an evidence based empirical analysis approach, by using available data to buttress our propositions and postulations. Before all this however, it is crucial to take the audience on the historical voyage of Immigration Law in Nigeria before 1963 and thereafter.

History of Immigration Law and Practice

Nigeria became an independent Nation on the 1st of October 1960. Before then, Nigeria as a colony existed as part and parcel of the commonwealth. In this regard, the laws applicable to citizens of the commonwealth were applicable to Nigerians, as far as Immigration Laws were concerned. Even at that, Immigration Law in Britain developed based on circumstances peculiar to their territory. The Aliens Act of 1905 was passed in response to the Jewish Immigration to Britain from Eastern Europe between 1880 and 1905, and to the Anti-Jewish campaign which accompanied it. The British Immigration Law has since developed, based on exigencies of the Moment.

On the 1st of August 1963, Nigeria enacted an Immigration Act to consolidate and amend the Law as to Immigration (1963. No. 6). Basically the Act was applicable to persons entering or leaving Nigeria, and to persons who are at any time therein after the commencement of the Act. It is instructive to note that, the 1963 Immigration Act remained in force in Nigeria till 2015 when a new Immigration Law and Regulation was passed by parliament. A noticeable aspect of the Immigration Law of Nigeria, is the paucity of case law in this regard. This did not help the development of the jurisprudence, as is the case in other jurisdictions. Not much has changed, since the new Law came into force. Thus, Lawyers in Nigeria pay scant attention or regard to immigration law and practice.

The 2015 Immigration Act, is the extant Law in Nigeria. Any projection on the future of Immigration Law and Policy in Nigeria, of necessity is now predicated on the 2015 Enactment.

Analysis of Provisions of the 2015 Immigration Law

It can be said that for the 2015 Immigration Act, made 52 years after the 1963 Act, there are bound to be substantial modifications.

Indeed, there are many additions in the 116 Sections of the 2015 Immigration Act with commencement date of 25th May 2015. Noticeable highlights of the 2015 Act include, well defined structure and functions of the Nigerian Immigration Service; a clear command structure of the service; detailed passport offences; conditions for entry and departure from Nigeria; control of visitors and transit; control of crews and stowaways; determination of Nationality in special cases; residency and employment of foreign Nationals in Nigeria; Deportation processes; comprehensive outlay of offences and penalties; Migration and Smuggling provisions; Enforcement and restitution of compensation order; seizure of property of arrested persons; forfeiture of foreign assets; Body Corporate offences and a more encompassing Interpretation clause.

There is no doubt whatsoever, that the 2015 Enactment is a massive improvement on the 1963 Act and therefore, in conformity with International standards and best practices. More significantly, the Enactment created an enabling environment for judicial intervention and participation, whether for civil or criminal actions in respect of the numerous offences highlighted.

The 2015 Enactment for inexplicable reasons, was disturbingly silent on the land borders of Nigeria and the role of the Nigerian Immigration Service (this issue will be extensively revisited, when we discuss the challenges of National Security in Nigeria).

Also, not addressed is the issue of illegal entry through unauthorised routes, and the procedure for tracking down illegal entrants into the country. More significantly, the law is silent on how to form a synergy between the Nigerian Immigration Act and the ECOWAS Treaty on Free Movement of Persons, Goods and Services. The irony in this is heightened by the fact that, our passports bears ECOWAS name.

Nationality, Citizenship and New Passport/Visa Regime

Legally a citizen of a country means one who under the Constitution and laws of a State is a member of the political community, owing allegiance and being entitled to the enjoyment of full civil rights. It is also defined to mean a member of a political community who in his associated capacity, has established or submitted himself or herself to the dominion of a government for the promotion of his general welfare and protection of his individual, as well as collective rights of all.

Chapter 3 of the 1999 Constitution of the Federal Republic of Nigeria (as altered) is quite explicit on classification for citizenship – Sections 25 – 27 of the Constitution. The 2015 Immigration Act in its interpretation section, also adopted the definition and classification of citizenship contained in the constitution.

There are some fundamental clarifications that must be made, before one can engage in any conversation on right to passport. First is to contextualise the provisions of Section 9(2) of the Immigration Act which states that “Nigerian Passport shall be issued only to BONA FIDE Nigerians within and outside Nigeria”. The concept of BONA FIDE in place of citizenship is totally unknown to Immigration Law and policy, and must be revisited for purposes of evolving the future dynamics of our Immigration Law. Secondly, is that in no part or portion of the Immigration Act 2015, is the word “ALIEN” mentioned. Again, this is another anomaly in Immigration Law Jurisprudence.

Entry of aliens, which can be equated to entry of non-citizens, is predicated on two contending theories on whether or not an alien should have free passage as of right.

Sibert’s Theory

The first theory has its main protagonist Sibert, who advocates a general right of entry for all persons. He contends that every State has a legal duty to receive in its territory, the ressortissants of other States. His theory, in the main, is premised on the present needs of international life, commerce, trade, and due to the exigencies of individual freedom of movement and migration. It also finds justification by reference to the right of immigration, which is enumerated in Article 13 of the Universal Declaration of Human Rights and the equality provisions as mentioned in the preamble to the United Nation Charter.

Sibert further argues that, the right of immigration is a corollary of the right to emigration, and therefore, States are under an obligation to admit aliens generally.

However, he admits certain exceptions to his theory of general right of entry. He is of the view that, a State has a sovereign faculty of prohibitions of entry in respect of individuals and categories, but at the same time denies this right affecting all foreigners.

Sibert’s theory, though attractive, has been criticised on several grounds. First, the theory de-emphasises the sovereign right of a State to exclude aliens at will, which is an incident of territorial sovereignty.

Second, aliens right to emigrate is limited by the right of a State to protect the immigrant himself. Third, the theory ignores the concept of “National Interest or welfare of the admitting State”.

Fourth, the question of immigration, reception of aliens and expulsion of aliens, are essentially the matters of domestic jurisdiction. As such, States must be considered competent to exclude aliens.

The Dominant Theory: Vattel

The second theory (which is the dominant theory) posits that a State is under no obligation to admit aliens, except where it has agreed to do so by treaty obligations and ‘’a fortiori’ ‘that if a State does permit aliens to enter, it may do so upon such conditions as it pleases to impose.

Emrich de Vattel who is one of the foremost proponents of the second theory, argues that entry of foreigners could be denied by a State, if they are ‘’danger’’ to the nation. According to him, a sovereign State may prohibit the entrance of foreigners into its territory in general, or in particular cases, for certain purposes as the “welfare’’ of the State may require, and can impose conditions upon the entering aliens. Vattel’s theory is based on two major premises. First, a State is not legally bound to admit aliens at all. Thus, aliens cannot claim admission to a State as a matter of right, but depends on the discretion of the admitting State. Further, he considers that the State is well within its power to impose conditions on entering aliens, keeping in view, the welfare of the State.

Nigeria’s immigration Law and Policy is tailored fully towards the theoretical postulation of Vattel, and this finds expression in both the 1963 Act and the extant 2015 Immigration Act. A critical appraisal of Parts 2 and 3 of the 2015 Immigration Act underscores the internalisation of Vattel’s propositions into Nigeria’s Immigration Law jurisprudence.

Back to the issue of citizenship, it is instructive to state that, evidence abounds that some non-Nigerian citizens are in possession of the Nigerian passport. This is not due to laxity or deficiency on the part of issuing officers, but a consequence of difficulty in distinguishing between a citizen and non- citizen among members of the ECOWAS community.

ECOWAS and Immigration Policies

The ECOWAS Treaty is an international agreement, to which Nigeria is a party. The preamble to the Treaty, envisages the elimination of all obstacles to the free movement of persons. The preamble of free movement of persons, is equally confirmed in the aspect of the treaty dealing with the aims of the community.

The ECOWAS Treaty provides a concrete legal basis for the freedom of movement, and to some extent the method of it’s implementation. According to the Treaty “Citizens of member States shall be regarded as community citizens and accordingly, member States undertake to abolish all obstacles to their freedom of movement and residence in the community’’.

The Treaty does not define the term ‘’community citizen’’. In pursuance of Paragraph 2 of Article 2 and Article 27 of the Treaty, the Heads of States/ Governments of the community, at a summit meeting held in Senegal, Dakar signed the Protocol on Free Movement of Persons in 1979.

ECOWAS Treaty defines ECOWAS citizen as follows “any person who is a citizen of any member State of the community is a community citizen”. Against this background, it stands to reason that all citizens of all the members States that make up ECOWAS are community citizens as defined, and are therefore entitled to all rights, privileges and duties that may accrue to any community citizen.

Before examining the legal status of ECOWAS citizens vis-a-vis Nigeria’s Immigration Law and Policy, it is pertinent to reconcile ECOWAS Treaty and Protocol with the respective municipal laws of the member States of ECOWAS, particularly Nigeria. As is most evident, each member State of ECOWAS has its municipal laws, which confers citizenship on persons. There are also related laws that govern the entry of aliens into other countries. Conferment of jus soli and jus sanguinis remains the predominant methods of acquiring citizenship and nationality. As is argued, both methods are not mutually exclusive, as some States follow a combination of the two methods in drafting the relevant legislations.

For anybody in Nigeria to claim community citizenship, he must have acquired Nigerian Citizenship by any of the constitutionally prescribed methods. This could be by birth, registration and naturalisation. The same principle applies to people from other ECOWAS member States.

It is instructive to state that, ECOWAS Treaty did not confer right of entry to another country on community citizens. Article 27(2) of the treaty merely provides that:

“Member States shall by agreements with each other exempt community citizens from holding visitor’s visa and residence permits, and allow them to work and undertake commercial and industrial activities within their territories’’.

The above provision only indicates that until an agreement is entered, exempting community citizens from holding visitor’s visa, no community citizen can claim right of entry into Nigeria.

On 29th May, 1979, Nigeria ratified the Dakar Protocol relating to free movement of persons. The Protocol fully endorsed the principles enunciated in Article 27(2) of the ECOWAS Treaty. As regard the free movement of persons principle, Article 2 of the protocol stated as follows:

“The community citizens have the right to enter, reside and establish on the territory of member States’’.

The Protocol further stipulated that a Community citizen visiting a member State for a period not exceeding 90 days, shall enter the territory of that member State free of visa requirements. However, there are some conditions precedent to the exercise of these rights of entry.

The Protocol provides that a citizen of the community must posses valid travel documents, including international health certificate. He must also present himself at any of the official entry points of member State, and the duration of his stay must not exceed 90 days.

It is pertinent to mention that the abolition of visa for community citizens, does not mean that they can enter the country illegally, or reside illegally, or engage in illegal activities in Nigeria in contravention of the immigration law and policy of the country. It means a treaty alien entering through a bush way, or without submitting to the immigration authorities, or without valid travel documents, or taking up employment without following the procedure prescribed by the Immigration Enactment, falls under the category of an ‘’illegal alien’’, and as such liable to deportation.

The Dakar Protocol was silent on the question of right to residence of a Treaty Alien. It was the Abuja Protocol of 1986 that defined right of residence as:

“The right of a citizen who is a national of one member State, to reside in a member State other than his State of origin, and which issues him with a residence card or permit that may or may not allow him to hold employment’’.

The right of residence, must be distinguished from right of entry. The right of entry permits a community citizen visiting a member State, to enter for a period not exceeding 90 days. This is totally different from the right of residence, which if granted entitles a community citizen a longer duration in a member State with possibility of securing employment. Article 3 of the Abuja Protocol however, provides that a member State may restrict the right of residence of Treaty aliens for reasons of Public Order, Public Security and Public Health.

This restriction may occur at the point of entry, or when the citizen is already within the territory of a member State. It all depends on when the information enabling the immigration authorities to invoke the restrictions, becomes available to them.

In spite of the right created for ECOWAS nationals by the respective protocols highlighted above, a host State still reserve the right to expel non-nationals for various reasons, and through laid down procedures.

As Hon Justice Niki Tobi clearly articulated in his conference of 1982 titled FREE MOVEMENT OF ECOWAS CITIZENS (13th Annual Conference of the Nigerian Society of International Law, 26th and 27th March 1982): “the right of expulsion is a concomitant attribute of statehood, which has to be exercised to minimum standard of civilised behaviour’’.

It is therefore, a well-established rule of international law that an alien (or a Treaty alien) is not above the immigration laws of a country. Thus, the moment an ECOWAS citizen violates the immigration laws of Nigeria, he becomes an illegal alien, and automatically liable to deportation.

Migration, Human Trafficking and Smuggling

The future of Immigration Law and Policy in Nigeria, cannot be discussed without an exhaustive scrutiny of migration, human trafficking and smuggling. It is instructive to note that, the 2015 Act unlike the 1963 Enactment, incorporated principles and policies drawn from literature on Migrant trafficking. This certainly has increased the responsibility of the immigration service, in the performance of their duties. It has also redefined the concept of migration from voluntary movement or migration, to coerced movement by third parties. What the Immigration Service is required to do in this regard, is to develop a database that will help document movement of migrant trafficking, and formulate measures to combat that form of migration.

As is well chronicled, trafficking in migrants has become a global problem which affects a complex matrix of origin, transit and destination countries, their international relations and security, and their economies. Thus far, there has been little systematic research into trafficking or serious academic literature on the subject.

The debate over precise definitions “for the concepts of trafficking’’, “smuggling’’, and “organised crime’’ came to a head only in the second half of the 1990s. Part of the problem in defining trafficking is the debate over whether it should be considered a form of illegal migration; this debate has had implications for formulating legal instruments and adopting counter-trafficking measures. A further obstacle to achieving a consensus on the definition of trafficking, is the confusion between the concepts of “trafficking’’ and “smuggling’’. In Europe, several agencies have drawn distinction between trafficking and smuggling. According to the Europol Convention of 1995, ‘’ illegal migrant smuggling “comprises activities intended deliberately to facilitate, for financial gain, the entry into, residence or employment of an alien in the territory of the State, contrary to the rules and conditions applicable in such a State” whereas trafficking relates to ‘‘…subjection of a person to the real and illegal sway of other persons, by using violence or menace, or by abuse of authority or by deception, particularly in order to engage in the exploitation of prostitution of that person, forms of exploitation of sexual violence in relation to minors, or trafficking in children given up by their parents’’.

It is therefore, generally agreed that trafficking in human beings involves elements of coercion, deception, violence and physical or psychological abuse, and that it often implies the involvement of networks or syndicates of organised crime.

The 2015 Immigration Act amply covered the field in the matter of smuggling of migrants, and the consequences/offences thereof. Part X of the legislation expressly established a directorate in charge of prohibited smuggling of migrants, while Part XI deals with smuggling of migrant’s offences. Part XII provides for restitution for smuggled persons, while Part XIV addressed the issue of migrants’ civil remedy. The introduction of “Objects of Smuggling of Migrants Trust Fund’’ in Part XVI, is undoubtedly a commendable novelty.

The interpretation clause gave apt definitions to the terms “smuggling of migrants”, “smuggled persons’’ and smuggle’’ within the context of immigration law jurisprudence. It is however, instructive to note that though the term ‘’trafficking ‘’ is well defined in the interpretation clause, the concept of trafficking was not incorporated in the body of the enactment. This is a grave omission, and does not confer full authority on the Immigration Act 2015. Certainly, areas to be addressed in projecting the future of immigration law and policy in Nigeria. (To be Continued)

Professor Epiphany Azinge, SAN, Professor of Law, former Director-General, Nigerian Institute of Advanced Legal Studies (NIALS), Principal Counsel, Azinge & Azinge, Abuja

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