The Future of Immigration Law and Policy in Nigeria (Part 2)

The Future of Immigration Law and Policy in Nigeria (Part 2)

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. The first part of the Address, was featured last week. This is the second and concluding part

Immigration and Challenges of National Security

As earlier posited, our immigration Enactment did not provide for our extensive hand borders, and nothing offered for control measures and mechanism. The consequence of our porous borders and inadequate border control measures, is infiltration of migrants with arms and ammunition. Today, Nigeria’s challenges of insecurity are attributable to extensive porous borders across the country.

Be they herdsmen, bandits, terrorist organisations etc, the position of those in authority is that, they are illegal migrants taking advantage of our porous borders. This is undoubtedly a major immigration challenge, and the future of our immigration law and policy must of necessity, formulate measures of addressing these security challenges.

The issue of border control, is by no means restricted to proliferation of arms and ammunition. It is an integral aspect of human trafficking, and smuggling as well.

United States of America grappled with similar challenges at the Mexican border, prompting former President, Donald Trump, to initiate the building of fence at the US-Mexico border. The fence was not completed before he left office, and President Joe Biden has, on assumption of office, stopped the construction of the fence.

The Nigerian Government has a major decision to take, along this line. It may be economically overwhelming to think of construction of border walls or fences, but it is not impossible to equip the Immigration Service with vehicles and equipment to patrol the borders and stem the movement of traffickers, bandits, and armed herdsmen, as well as halt the proliferation of arms and ammunition.

Immigration personnel and authority, have a duty to address border control issues. Comments seem to suggest that the challenges of insecurity in Nigeria, are inextricably related to responsibility – deficit on the part of Immigration Service.

A clarion call for the Immigration Service therefore, is to strive to pigeon hole our porous borders, devise strategies for control, build capacity for detection and enforcement of migrants’ movement, and foster patriotic fervour that motivates personnel to give their best in the service of their fatherland.

Immigration Fraud and Trans-Border Criminality

Tangentially related to challenges of National Security, is the festering issue of immigration related fraud and trans – border criminality that is rooted in immigration principles and practice.

Again, these are issues that will agitate the mind of immigration law and policy scholars. Whether it is organised crime, corrupt practices, money laundering, terrorist financing, drug trafficking and illicit transactions etc.

Trans-border criminality may take many colourations, the major attribute being that it has to cross the borders of two States. Similarly, criminal actions by ECOWAS Citizens equally qualify as trans-border criminality – this, independent of well and expressly chronicled offences, enumerated in the 2015 Immigration Act.

In this era where Banks have branches in many parts of Africa and West Africa, Bank fraud across borders have ingredients of immigration fraud, though not well captured by the Immigration Act. Future law and policies on immigration therefore, are expected to highlight and address Immigration fraud and trans-border criminality.

Immigration and Economic Policies

The future of Immigration law and policies, can never be far removed from the impact of immigration on economic policies.

Recall that in 1983 and 1985, there was the issue of mass expulsion of community citizens (ECOWAS); and also border closure from April 1984 to February 1986, and also in 2020. All this was contrary to the spirit and letter of the ECOWAS Treaty.

It is however, not in dispute that many community citizens seek refuge in Nigeria, in order to escape from abject poverty and the economic situation in their own country. The influx of these ECOWAS aliens aggravates Nigeria’s economic problems, and occasionally compels the government to react rashly. Rather than adopt a fire brigade approach in embarking in mass expulsion or seemingly erratic border closure, Government should revisit the issue of monitoring immigrants in the country.

In a conference early last year in Ghana under the auspices of ECOWAS, Nigeria’s delegation was subjected to barrage of verbal attack and insults, for the closure of the border. For most ECOWAS countries, it was considered, as grave injustice, and the President of Ghana did not gloss over the matter in his remarks at the conference. For economic reasons, Nigeria has every right to shut its border. The challenge is to ensure that they adhere to the provisions of various Protocols stipulating procedures for expulsion of community member.

The Abuja Protocol provides necessary safeguards against rash reaction by host States, and clearly forbids mass expulsion of migrant workers and members of their families. In the same vein, the Dakar Protocol stipulates that a decision to expel any citizen of the community from the territory of a member State must be notified to the citizens concerned, as well as the Government of which he is a citizen and the Executive Security of ECOWAS.

Nigeria must rethink its policies and actions in this regard, and a well thought out strategy devised to ensure that actions are not rash, but in concert with regulations and protocols.

It cannot be denied that notwithstanding the ECOWAS Treaty and Protocols, countries often invoke the principle of reciprocity in matters relating to Immigration/Economic Policies. It is instructive to observe that, during the closure of the Nigeria border last year, Ghana was on the verge of expelling Nigerians and subjecting them to harsh business conditions, but for the diplomatic foray of some high ranking Nigerian officials.

The Immigration service should study this aspect of Government policy closely, and advice appropriately. I have no doubt that this Centre of immigration Studies, will lead conversation in that regard.

Technology and Immigration

Technology, over the years, has remained an indispensable and integral part of immigration administration and management.

Apart from processing of Passport Documents and Visa issuance, technology is critical for data processing and statistical analysis. The Immigration Service should be able to directly develop and source its own data, without recourse to the National Bureau of Statistics. Besides, the website of the Service should be able to upload relevant information, for easy access by the public. Vital information like annual number of persons entering and leaving Nigeria; number of passports issued each year, gender classification of travellers, number of ECOWAS citizens entering and leaving Nigeria, number issued right of residence and work permit; projected and actual incidences of smuggling and trafficking of migrants etc. These are indices for research and policy formulation, without which the future of immigration law and practice cannot be planned for.

It is my respected view that, field operators be trained to key-in information directly to the information super-highway and centralised collation of data centre, that will help data processing and analysis. This is relevant information, which will help to boost the budget of the Immigration Service and reveal the challenges of the Service. Technology can also assist to make projections, in respect off illegal migrants across our porous borders.

Immigration and Related Laws

Immigration Law is never discussed in isolation. It is globally, inextricably intertwined with other related laws. In Nigeria, Immigration Law is linked to many related laws, especially the Constitution of the Federal Republic of Nigeria 1999(as altered).

The whole issue of citizenship cannot be discussed, without recourse to Chapter 3 of the Constitution. In this regard, the status of aliens married to Nigerian women comes to the fore. Constitutionally, marriage of aliens to Nigerian women does not confer on them a legal status, as is the case in some other jurisdictions. It does not confer Nigerian citizenship, or indeed, any special status for purposes of immigration. However, it should be argued that such a marriage makes the acquisition of citizenship a lot easier.

Flowing from the above, it is obvious that the Matrimonial Act is one of the related laws to be considered for purposes of immigration. Other related laws include National Refuge Commission Act, NAPTIP Act, NDLEA Act, Money Laundering Act; Terrorism Act, Child Right Act, Company and Allied Matters Act (as amended), kidnapping and Abduction Laws, the whole gamut of Penal and Criminal Codes, Maritime Laws, Aviation Laws, Police Act, Labour Act, I.C.P.C Act; and Extradition Act. Other International Instruments considered related include, ECOWAS Treaty and Protocols, Diplomatic Conventions, International Laws and Conventions, Asylum Protocols, Interpol Agreements and Deportation Protocols and Bilateral Agreements.

The future of Immigration Law depends on the updating of the above laws and protocols, to bring them in conformity with international standards.

Judicial Review of Immigration Laws

Earlier judicial interventions in the realm of immigration law, has hovered more around the precincts of Constitutional and Administrative Law. Not much has centred on interpretation of provisions of Immigration Act. The courts have not been activated, in that regard. The reasons could be attributed to the rather obsolete nature of the law, or disinterestedness of legal practitioners to activate the court in matters of immigration laws. To date, it is ironic that immigration practice in Nigeria, unlike in other jurisdictions, is not considered a ‘’ juicy’’ aspect of legal practice. This is flawed reasoning, given the fact that Nigeria has fast-tracked ease of doing business; investors and tourists are streaming into Nigeria, and many foreigners are now involved in developing of infrastructure in many parts of the country, be it in the railway, hospitality, road, building and oil related business. Mention must be made of oil conglomerates, who have resided in Nigeria for over 50 years. All these foreigners and members of the ECOWAS community, require the service of immigration law experts. So also are students, athletes, entertainers, skilled artisans (Domestic Cooks, Tailors, Hairdressers and Beauticians). The truth, which is evident, is that immigration law practitioners and scholars have not come together to give vibe and vitality to this special aspect of legal practice.

The future of Immigration Law and Policy therefore, depends on building a case law borne out of judicial pronouncements on immigration law provisions in Nigeria. Again, this will depend more on the readiness, willingness and capacity of Lawyers to test cases in court, and by so doing, develop immigration law jurisprudence in Nigeria.

The 2015 Immigration Act is replete with plethora of new clauses, that readily invite judicial review and pronouncements.

The powers conferred on immigration personnel and the Minister in charge of immigration matters, are enough reason to underscore that such powers should not exercised arbitrarily.

All the offences established by the 2015 Immigration Act, is another basis for judicial intervention.

The courts will be eager to wade into issues dealing with restitution and compensation for smuggled migrants; seizure, forfeiture and attachment of assets (including forfeiture of foreign assets).

As earlier highlighted, there is enough room in the 2015 Immigration Act for judicial review of administrative action. More than ever before, the Immigration Service has been saddled with numerous investigative responsibilities, and these are areas that can warrant or necessitate review of such actions.

Mention must also be made of the civil remedy that avails any person who is an object of the offence of smuggling, and who by law, has the right to institute civil proceedings against any person who subjected him to the act or conduct constituting the offence. The Immigration Act grants the court (section 95(1)) jurisdiction to entertain the action, and to order the provision of appropriate material or non-material remedy.

Nigeria’s corpus juris in respect of deportation of aliens, is very rich indeed. But, a lot can still be achieved in terms of judicial intervention and pronouncement, in the area of deportation and expulsion. Only a vibrant and vitalised immigration law practice, can invoke the cutting edge activism necessary for achieving required judicial intervention.

Nicholas Black has brilliantly enumerated what the future of judicial review of immigration cases will be, and I entirely agree with his prediction.

According to him, the hope for judicial review is namely:

(1) That the courts develop procedural fairness in the context of expulsion cases, so that there is a clear opportunity to make representations and receive an answer before a decision to deport is taken (particularly for those without a right of appeal on the merit of the exercise of discretion).

(2) That procedural fairness should not stop, when issues of national security are concerned. I would hope that the Judges will enter the fray, to the extent of telling us what national security really is in this context, what consideration of national security is sufficient to override human rights, the right of asylum, the right of family life.

(3) That the development of the duty of fairness and the principle of legality will require greater transparency and publication of policies and practice and fuller disclosure of relevant materials, when the government responds to judicial review applications

(4) That international human rights standard, and indeed, other treaty obligations of the State, are used more actively as the yardstick of the lawful exercise of discretion whether to depart from the rules or to make them in the first place.

(5) That the courts will take on the principle of proportionality as a tool for more active intervention, in immigration cases concerning balance between a strict immigration policy and human rights.

Immigration cases provide some of the most challenging questions of public law, as immigrants are one of the largest customers of the judicial review process. It cannot be denied however, that due to desperation, too many unmeritorious cases are brought which amount to little more than a plea for an extension of time, more than that given by the Minister or commanding heights of the Immigration Service.

Immigrants however, have raised some of the most important constitutional issues. They have prevented habeas corpus falling into desuetude, and that represents a service of inestimable value to the law. Active and anxious judicial review of these sensitive issues, remains of great importance.

A democratic State is not merely one that elects its politicians periodically; it also requires judicial protection of valuable aliens and immigrants, due process, and a regime consistent with international standards of human rights.

Reforms

With the 2015 Immigration Act, Nigeria now can boast of a piece of legislation that is in line with international best practices. That is quite commendable. But, the same cannot be said of policy considerations that dictate the approach to immigration issues in Nigeria.

Nigeria’s liberal and non-discriminatory immigration policy which is based on the principles of ‘’accommodation’’, ‘’tolerance’’ and ‘’humanitarian’’ considerations, may not be easily jettisoned by successive governments in Nigeria. This is further accentuated, by the overwhelming effect of ECOWAS treaty and protocols. This is an aspect we must rethink for the future. National security considerations, must also be given top priority in immigration conversations and policy formulations.

As already posited, the Immigration Service must brace up for the challenges of the future, by ensuring that it is properly equipped with state-of-the-art gadgets for effective monitoring of various immigration posts – especially in the control and surveillance of land borders considered to be very porous.

In this regard, one will readily recommend the use of drones and satellite gadgets, to monitor movements across our land borders.

Tangentially related to the above, is human capital development for the Immigration Service. The Service must relentlessly build capacity, to meet the challenges of the moment. Above all, more personnel will be needed to man the vast land borders in Nigeria. Government must provide for recruitment of personnel. In the same vein, the Immigration Service must be enhanced, for procurement of adequate infrastructure necessary for efficient performance by our Immigration Service.

Deportation and expulsion, are generally the sore points in immigration cases. The decision in Shugaba Abdulrahaman v Federal Minister of Internal Affairs is ever heart warming, for the simple reason that the court was able to resist the politicisation of deportation matters. This must endure, if we are to develop an immigration law jurisprudence that is unfettered by political considerations.

Finally, it is hereby suggested that apart from the capacity to trace illegal migrants, our Immigration Service must devise means of tracking legal migrants who may have breached conditions for their entry. This is the only way they can be sanctioned, for violation of immigration law.

Once illegal migrants and ECOWAS citizens believe that our Immigration Service lacks capacity to enforce violations, the tendency is to honour our immigration law more in the breach than observance.

Conclusion

The vision of establishing this Centre is one that we must not only applaud, but also support in all ramifications. The future of Immigration Law and Policy in Nigeria, rests on centres of immigration studies like this pioneering Centre. In this Centre will ideas be generated, contending views crystallised, policies formulated, and case law critically dissected, all geared towards building a corpus juris of immigration law for Nigeria. The future of immigration law and policy in Nigeria therefore, lies in effective and efficient utilisation of the Centre of Immigration Studies, Gregory University, Uturu.

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