LAW AND MIGRATION BEING A PAPER PRESENTED BY ROSELYN EKHOE OBAKPOLOR

LAW AND MIGRATION BEING A PAPER PRESENTED BY ROSELYN EKHOE OBAKPOLOR ON 27TH NOVEMBER, 2019 AT THE JOURNALIST INTERNATIONAL FORUM FOR MIGRATION SUMMIT HELD ON 25TH -28TH NOVEMBER, 2019 AT ABUJA WITH THE THEME: MIGRATION: THE ECONOMY, HUMAN SECURITY AND DIASPORA VALUE

INTRODUCTION:

Migration is a fundamental part of human nature. It involves the movement from one’s usual place of abode or place of origin to an entirely different location either within the same geographical location or region or to a completely different one.

Man by nature is an explorer and movement from one place to another is innate in him. People move from one location to another for various reasons. Some could be for reason of better opportunities (in common parlance “greener pastures”), others could be by reason of unemployment, hardship or poverty, insecurity, ethnic conflicts, wars or even natural disasters. Many who find themselves in such conditions usually consider migration from their usual place of abode or place of origin as the best option not minding the risk, cost or uncertainties involved.

Migration is a global phenomenon which transcend both developed and underdeveloped countries. It is not restricted to race, sex or creed but a common trend that affects the entire human race.  On daily basis migrants enter the shores of receiving nations in droves particularly from developing countries to Western Countries and also from countries within the same region to others considered to offer better opportunities than their home country. Nigeria is having its fair share of inflow of migrants from across neighbouring countries and other nations of the world just as much as thousands of  Nigerians are migrating on daily basis to other countries of the world particularly Europe and America. Considering the vast nature of its natural resources and man power, Nigeria provides a most strategic and profitable market location for foreign investors hence many citizens of the industrialized countries find Nigeria a most viable place for establishment of their profit oriented businesses.

In view of the process of intra- and inter- territorial migration, migrants are exposed to many vagaries of human needs, wants and regulations. It follows therefore that many of these migrants may not necessarily possess the legal requirements to accord them easy passage especially as it relates to inter- migration.  For inter- migration granted by many countries, their Constitution enshrined the freedom of Movement in it for example section 41(1) Chapter IV of the Constitution of the Federal Republic of Nigeria 1999. The Nigeria experience has however shown that same is fraught with conflicts arising from differences in culture and way of life of the migrants and the populace. Therefore, there has to be a means of protecting migrants who are human beings and often driven by circumstances and vicissitudes of life.

Who is a migrant? A migrant is a person who attempts to relocate permanently or temporarily to a new geographic region, location or country and subject to removal by the government of that country. In other words the migrant is bound by the national law of the country of destination which can accept or refuse his or her entry or stay.

There are four types of migration namely;

  1. Counter- Urbanization; this involves migration from one urban area to another, especially from towns and smaller cities. A very good example is Lagos the commercial nerve centre. It is considered the most developed city in Nigeria with thriving and diverse commercial activities given the level of its development over the years which stem from its previous status as the Federal Capital. Thus the city with its dominant financial and economic activities as well as outstanding infrastructures and social amenities, has continued to pull migrants from neighbouring towns and cities and from capital cities of other states within the country daily. Other urban cities where there are high level of commercial activities such a Port-Harcourt, Onitsha, Aba, Kaduna, Kano and Zaria have equally experienced in flow of migrants from other less commercial or developed towns and cities.

For the purpose of this paper and in line with the theme of this Summit, the focus will be on international migration. Since international migration entails trans-border movement it follows that migrants are subject to various rules of immigration which may vary from country to country in recognition of the rights of nations to exercise sovereignty over their territorial boundaries.

This paper will look at some of the core international law provisions in international treaties in relation to human rights of migrants and the effect on national laws and the level of implementation if any vis-a-vis the sovereignty of the destination country to make laws and policies with respect to migrants; and the impact of such laws or policies on the economy; and the benefits of migration.

MIGRATION AND HUMAN RIGHTS

“It is true that we have risked to die. But we were born in the wrong part of the world. If we do not risk, we get nothing from this life”.[2]

“How our societies treat migrants will determine whether we succeed in building societies based on justice, democracy, dignity and human security for all”[3]

The above set a painful note and depict aptly the plight, hazards and horrendous experiences migrants go through or encounter in their quest to migrate and remain in a foreign country for better conditions of living or for other reasons propelled by unpleasant circumstances in their country of origin.

There is, as has been stated earlier, a multitude of reasons to migrate and whatever the circumstances in which they travel, those who become migrants typically move in a new, unfamiliar and less secure world. Whether they have entered with authorization or they are undocumented, migrants will generally find their rights diminished in comparison with citizens of their country of residence.

The degree of which those rights are violated and the degree, to which migrants are excluded from legal protection or redress, varies from jurisdiction to jurisdiction and migrants particularly undocumented migrants consider the insecurity, restrictions and violation of their right in their country of destination more tolerable and preferable than the prevailing conditions in their home country which compelled them to undertake the risk of migration. Migrants in such hostile conditions in their country of destination are prepared to risk losing their rights or even limbs just so they gain or achieve their aim of migration. Nothing could better explain this precarious situation of migrants than the statement of Youssef who was himself an undocumented migrant at some point. This is the human condition that various States migration policies and laws struggle with, manage and sometimes exploit.

However because of the sensitivity of this migrant phenomenon arising from human involvement, the concept of universal treatment of migrants evolved which nations are enjoined to uphold in dealing with migrants. The concept of human rights pushed forward by international bodies particularly the United Nations Organization emerged. A series of international Conventions on human rights generally and specifically relating to treatment of migrants and also direct Conventions on migrants rights have evolved over the years.

The first of which is the Universal Declaration of Human Rights (UDHR) made by the United Nations General Assembly in 1948. The Declaration affirmed that “all human beings are born free and equal in dignity and rights”. Now human rights are rights to which all persons, without exception, are entitled. Persons do not acquire them because they are citizens, workers, or have any other status.[4] Other international instruments which are part of the international legal framework for the protection of migrants across the globe include the International Covenant on Economic, Social and Cultural Rights (ICESCR) and International Covenant on Civil and Political Rights (ICCPR). These Universal treaties have been supplemented by many regional human rights instruments such as the African Charter on Human and Peoples’ Rights (ACHPR), the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and its Protocol and the American Declaration on Rights and Duties of Man (ADRDM) and American Convention on Human Rights (ACHR) to mention a few.

There are also some very specific human rights treaties that seek to protect migrants’ rights from violation. Two examples will suffice which are, the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and the International Convention for the Elimination of All Forms of Racial Discrimination (ICERD). 

Some of the fundamental rights provided for all persons regardless of the migration status of migrants in the universal treaties on human rights are;

  1. The right to life, liberty, and security of the person and to be free from arbitrary arrest or detention and the right to seek and enjoy asylum from persecution.
  2. The right to be free from discrimination based on race, sex, language, religion, national or social origin or other status.
  3. The right to be protected from abuse  and exploitation, to be free from slavery, and from involuntary servitude, and to be free from torture and cruel, inhuman or degrading treatment or punishment;
  4. The right to fair trial and legal redress; and
  5. Other human rights as guaranteed by the international human rights instruments to which the State is a party and by customary international law.

The human rights guaranteed under the above instruments are rights that no one may be deprived of simply because he or she entered or remained in a country in contravention of the domestic immigration rules, just as no one may be deprived of the human rights because they look like or are “foreigners” or they are children, women or do not speak the local language. Thus the principle of universality of human rights is a particularly valuable one for migrants.

The reality however, is that these rights contained in the instruments stated above are at best illusory where they cannot be enforced or implemented in cases of breach or violation of same by the country of residence of the migrants concerned. Thus a national legal system that can provide effective access to justice and remedies for violation of human rights of migrants is therefore very essential.

The UN Charter in its Preamble set an objective to wit: “to establish conditions under which justice and respect for obligations arising from treaties and other sources of international law can be maintained….These powers are given to it by the UN Charter which is considered an international treaty. As such, it is an instrument of international law, and UN Member States are bound by it”

The question therefore is, are member states that are enjoined to implement International treaties by reason of their membership of the United Nations doing exactly what they are obligated to do? And are they aggressively doing so in their various domains? The answer is an emphatic NO especially in the light of recent happenings in some Member States.

Though many States’ legal system are becoming increasingly open to the influence of international law and in some cases, the provisions of the international instruments may be invoked in domestic courts in order to claim respect and implementation of human right. However, many States have set up obstacles and series of restrictions in their migration laws and policies that have not only endangered migrants and robbed them of their rights but also have the effect of completely reducing the good intentioned human rights provisions in the international instruments to mere cosmetics and meaningless provisions.

In Nigeria for instance, the provisions of sections 8, 9(c) and 10 of the Immigration Act[5] are stringent provisions that in my humble opinion, work contrary to the human rights provisions against discrimination contained in both the Universal Declaration of Human Rights and International Convention for the Elimination of all forms of Racial Discrimination. Now ICERD defines racial discrimination as any distinction, exclusion, restriction or preference based on race, colour, decent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedom in the political, economic, social, cultural or any other field of public life. The provisions of sections 8, 9(c) and 10 of the Immigration Act in the light of the above definition run contrary to the right against racial discrimination in the international treaty.

However it must be said that the Migration Policy of Nigeria 2015 has to a large extent sought to eliminate the discrimination inherent in some of its statutory provisions such as those stated above.  A portion of the policy statement against discrimination and its objectives is reproduced hereunder

“Many destination countries are experiencing rising racism, discrimination,

xenophobia and intolerant behaviour towards migrants. This creates

social tension, prevents local integration of migrants within their host

community and denies migrants their rights. Nigerians by tradition are

very hospitable and welcoming of foreigners in their midst; however,

opposite prevails in foreign countries where Nigerians have chosen to

reside. The Government should ensure, through the efforts of Nigerian

diplomatic missions in destination countries, that Nigerians resident

abroad are not subjected to discriminatory or intolerant behaviour, while

maintaining the same standard for immigrants resident in Nigeria.

Objectives

discrimination principles for all types of immigrants;

implementation of migrant rights;

programmes for refugees and asylum-seekers, as well as for other

migrants.[6]

I submit that is a very laudable and humane provision in the National Migration Policy of Nigeria and strongly recommend same to other African countries and indeed other nations of the world yet to formulate such accommodating policies in relation to migrants.

It is common knowledge that the realities confronting migrants in diverse countries of residence are a far cry from the situation envisaged in the international human rights treaties including those in regional and sub-regional instruments. Were provisions in the international and regional treaties to be implemented by states parties to the treaties sincere commitment, I make bold to say that many of the violations of the human rights of migrants in host countries would have become a thing of the past. What we find in recent happenings in some countries is a conflict between the rights of nations to self preservation and obligation to implement treaties of the international, regional or sub-regional bodies they are members of.

The recent frenzy xenophobic attacks on Nigerian migrants in South Africa that led to the destruction of several lives and properties worth millions of Naira belonging to the migrants is a good example. The racial discrimination and inhuman, cruel and degrading treatment meted out to several Nigerian migrants by South Africans (while the host government look on rather than restrain the attacks) with a view to expelling Nigerians from South Africa is evident of the self preservation instinct in many States clandestinely orchestrated through their citizens against migrants.

The US-Mexico border/Asylum Policies: The United States of America a frontline member of the United Nations and a member of the Security Council has adopted a hard-line policy of aggressive expulsion of migrants through the Mexican borders particularly the undocumented ones and denying immigrants crossing the Mexican borders to seek asylum the United Sates. The policy has been in the international news since Trump administration. Donald Trump’s desire to build a wall barrier over the US-Mexico border to completely wall off migrants entering America in droves, has been subject of condemnation by various human rights activists and organizations. Though the policy has been vigorously condemned and the barrier yet to be erected, there are however measures and actions being executed daily against the migrants for the sole aim of keeping  the out of or removing them from the United States.  An international news report on the US policies puts it succinctly;

“The Trump administration has advanced a wide range of cruel policies that have stymied the internationally-recognised rights to seek asylum. The bricks in Trump’s border wall take several forms: ‘metering’, which constricts the number of asylum seekers who can apply on any given day; the so-called Migrant Protection Protocol, which require asylum seekers to remain in Mexico while they wait for their cases to be processed, and; The Safe Third Country Agreement, which requires migrants to apply for asylum and get rejected in a country they transit through before seeking asylum in the US….the Trump administration’s asylum policies are contributing to the suffering of these already traumatized people. He could not literally build a wall, so he decided to leave thousands of asylum seekers from around the world stranded on the Mexican side of the border. His administration has created growing migrant encampments-refugee camps in the making. Some 60, 000 asylum seekers are currently stuck in Mexico, exposed to further violence.”[7]

The recent land border closure by Nigeria Government since August 20, 2019 which is yet to be reopened is another policy that undermines both international and region or sub-regional treaties or even bilateral agreement.  The unilateral border closures go against all commercial and freedom of movement treaties signed under the Economic Community of West African States (ECOWAS). The closure also cast a shadow over a historic free-trade agreement, signed by 54 out of 55 African countries reached in July, 2019.

The border closure though relates to goods and not migrants, it however buttressed the point being made that member States makes policies or laws that enhance their self preservation rather than implementation of treaties which they consider antithetical to economic, social and security in their domain.

EFFECT OF THE STATE LAW AND POLICIES ON THE ECONOMY AND SECURITY

It not in doubt that every member state of the United Nations are sovereign bodies and are entitled to exercise their sovereign powers within their domain without interference from the international body. This is with keeping with the recognition of the territorial sovereignty of every member state by the United Nations or regional bodies.

However in making laws and policies for their respective jurisdiction, Member States are enjoined by UN to uphold the principles in international treaties which they are obligated to keep by reason of their membership of the body. But as has been shown in this paper, many member states have made laws or policies that have impacted negatively or rather undermined the provisions in international treaties.

The driving force behind restrictions on migration vides State laws and policies are to safe guard the economy of the State as well a internal security of the lives and properties of its citizens within its jurisdiction. There is no doubt that effective implementation of the policies to control migrants’ entry do have some economic and security benefits. The control of migration protects the scare available jobs or businesses for citizens rather than make it open to competition with other nationals and thereby reduce the rate of unemployment. But where there are more applicants that is both citizens and foreigners, competing for few available jobs the level of unemployment would be higher and that of course will have ripple effect on the economy. 

Furthermore, control policies would also ensure effective population control for planning purpose economically with respect to infrastructures, amenities and even distribution of available resources.

With respect to security, keeping restriction on migration through State member laws or policies does and frankly too help to reduce incidences of insecurity. The Nigerian experience in view of the abysmal porous state of its borders have opened it up to numerous criminal activities cross border ranging from smuggling, arms deals and terrorism which hitherto were not common crimes within the country’s borders.

The US aggressive policy against asylum seekers is essentially aimed at curtailing terrorists’ group activities within the States. Opening its borders unchecked to all asylum seekers across the globe may be giving easy entrant into its territory by enemies of the States bent on carrying out destructive acts against the States and on its citizens. The various attacks carried out in the United States by terrorists groups some of whom entered therein as migrants seeking asylum may have informed the new policy to keep them in check.

On the flip side however, the negative impacts of the policies are far reaching than the positive aims sought to be achieved. State law or policies on migrants that undermine human rights of the migrants certainly would have adverse effect on economy in the light of the remittances from migrant which contribute to a very large extent to the GDP of home country and economic growth of the host country in terms of human capital growth. The dehumanizing, cruel and racial discrimination against migrants can more than anything else spark off violent and wide spread conflicts and reprisal attacks both in the host country and in the home country of the migrant as seen happened recently in the xenophobic attacks on migrants in South Africa. The reprisal attacks back home in Nigeria which was quelled by the quick response of the Nigerian security agencies, the insecurity and violence that would have resulted there from would have been better imagined. 

Therefore where adverse policies curtailing migrants’ entry are made by countries of destination, they unwittingly weaken their economic growth and create a situation of insecurity within their domain.  A look at the benefits of migration below will drive home the point being made here.

BENEFITS OF MIGRATION   

There are vast benefits most especially economic benefits that a well managed system can bring to host countries and home countries alike.

Economically, many migrants seeking relocation either on ground of asylum or employment in another country are largely persons in their active and productive stage in life and able to making meaningful contribution to the economic growth to both their host country and their country of origin.

Using Nigeria as a case study, the migrant remittance to Nigeria in 2018 alone was US$ 23.63billion representing 6.1% of Nigeria’s GDP. In 2017 the remittance was $22billion. The 2018 migrant remittance translates to 83% of the Federal Government budget in 2018.[8] It was estimated by PWC in its white paper Series on Nigerian economy and society, that migrant remittances could grow to US$25.5billion, US$29.8billion and US$34.8billion in 2019, 2021 and 2023 respectively.  It was stated in the paper that the growth in remittance flows would be spur by growth in emigration rate, economic conditions of the resident countries amongst other factors. There is gainsaying therefore, that migrant remittance to the country has contributed immensely to national development. In recognition of the strategic importance of the Nigerian Diaspora, the Federal Government signed into Law the Nigerians in Diaspora Commission Bill in July, 2017. In 2019, the Federal Government declared 25 July of every year as National Diaspora day.  

Globally, the largest recipient of migrants remittances is India ($80 billion) followed by China, the Philippines, Mexico and Egypt according to a report by World Economic Forum.[9]

Migration delivers major economic benefits not just to the home countries of the migrants but also to host countries. It boost demand in host countries, increase work force  as well as replenish the working population aging out in many developed and high- income countries. Migrants also spend most of their wages in the host countries.

It thus follows that any government which truly desire meaningful development and boost in its economy must ensure that it male policies that support migrants migration.

CONCLUSION

There is no doubt that the benefits derivable from migration far outweigh the negative and perhaps wrong perceptions by host countries. Therefore countries of destination are enjoined to implement policies favourably disposed to migrants and in line with international and regional treaties on human rights of migrants. And where the system is effectively managed, both host and home countries would gain more benefits that would enhance development, economic stability and internal security. 

[1] Where Immigrant Students Succeed- A comparative review of performance and engagement in PISA 2003. Paris: OECD Publications, 2006 (17-19)

[2] Youssef, an undocumented migrant in Italy from Fabrizio Gatti, Bilal; Viaggiare, Lavorare, Morire da Clandestini, RCS Libri SpA, Milan, 2007, p. 385 (unofficial translation)

[3] Address by Ms Navanethem Pillay, United Nations High Commissioner for Human Rights, at the Global Forum on Migration and Development/Civil Society Days, Puerto Vallarta, Mexico, 8 November, 2010.

[4] Migration and International Human Rights Law A Practitioners’ Guide icj 2014 ed.p.58

[5] Cap11 LFN 2004

[6] National Migration Policy 2015 International Organization for Migration p.47

[7] www.aljazeera.com 21 Oct. 2019 by Tamaryn Nelson accessed 21/11/2019

[8] Strength from Abroad The Economic Power of Nigeria’s Diaspora@www.pwc.com/ng accessed 21/11/19

[9] www. Weforum.org 01 Mar. 2019 accessed on 21/11/19

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