The criminalization of mobility in Niger:

The ASILE project seeks to contribute to a better understanding of the role and impacts of legal and policy responses on refugee protection, with a particular focus on the role of the European Union. This case suggests that European Union interests to manage northbound migration flows in Niger played a role in the drafting and implementation of Law 2015-36, thereby criminalizing mobility, which had significant consequences for migrants in Niger and for the local population in Niger’s Agadez region.

I. Background: migration in Niger and European Union response

Migration has always played a pivotal role in Nigerien livelihood strategies and the country’s economy.[1]  For centuries, Nigeriens have migrated during dry seasons to seek labor in neighboring countries. At the same time, Niger has been an important crossroads in the Sahel for migrants from other African countries.[2] During the last decade, with rising numbers of migrants arriving on European shores, Niger moved into the focus of the European Union. In 2015, EU policymakers identified Niger as one of the main transit countries for refugees and migrants on the Central Mediterranean Route towards Europe.[3]

At the EU-Africa Valletta Summit in November 2015, the European Union Emergency Trust Fund for Africa (EUTF) was established.[4] Among other initiatives, this marked a change in the distribution of EU development aid funds from a needs-based approach towards a policy-oriented approach conditioning development aid and assistance for African governments to migration governance.[5] Designated as a strategic partner, EU development aid money for Niger was made conditional upon the country’s commitment to limiting northbound migration flows.[6] Between 2015 and 2022, the EU funded 19 projects with a total of 687 million Euros in Niger, most of which focused on border surveillance and law enforcement.[7] As elaborated on below, these concerted efforts to manage and limit mobility through Niger have had far-reaching effects on the Nigerien population as well as migrants passing through Niger. This approach and its consequences are exemplified by Niger’s Law 2015-36.

II. What is law 2015-36?

Law 2015-36 prohibits the ‘illegal smuggling of migrants’ and was adopted in May 2015 by the Nigerien parliament despite heavy domestic opposition.[8] Although a legal framework from 1981 which addressed irregular entry and stay in the country already laid out strict rules, these were seldom implemented.[9] This changed with the adoption and subsequent enforcement of Law 2015-36, which criminalized any facilitation of illegal entry to and exit from Nigerien territory.[10] In case of a breach, the new law introduced high fines and prison sentences of up to 25 years.[11] Additionally, the law criminalized domestic transport of passengers without official documents within Niger, which has had consequences for many Nigeriens who do not possess identification documents.[12]

In addition to financial assistance from Italy and Denmark, the United Nations Office on Drugs and Crime (UNODC) assisted financially and technically in drafting the law.[13] However, while external influences were critical for the drafting, adoption, and implementation of law 2015-36,[14] domestic considerations also played a role. In 2013, following the tragic deaths of 92 Nigerien migrants stranded in the desert near the Algerian border, the Nigerien government itself sought to deter irregular migration of its citizens.[15] Nevertheless, the passage and strict enforcement of Law 2015-36 has been frequently associated with influence from external, particularly European, actors.[16] For instance, in 2015 the EU’s High Representative for Foreign Affairs and Security Policy made her first African visit to Niger, a distinction that was perceived as recognition for having passed Law 2015-36 earlier in the year.[17]  Such high-level visits of European Heads of States and top-level EU officials – emphasizing migration deterrence – were numerous in the following years.[18]

III. Enforcement and consequences of Law 2015-36

Even though the law was adopted in 2015, it was not significantly enforced until mid-2016.[19] The Agadez region, stretching from Niger’s center through the Sahara Desert all the way to the northern borders with Libya and Algeria, was most impacted by the implementation. Since the 1990s, the city of Agadez had been a main transit hub for northbound migrants, and estimates suggest that more than 6,000 jobs were directly related to the passage of migrants prior to the implementation of the law.[20] This changed in 2016 when Nigerien authorities started to arrest smugglers and confiscate equipment. According to the European Commission, with EU support under the auspices of  the Partnership Framework with third countries under the European Agenda on Migration , 95 vehicles were confiscated, and 102 smugglers were arrested between mid-July and the end of October 2016.[21] Support by the EU entailed the opening of a field office in Agadez to carry out training sessions with Nigerien security forces and direct support on the ground by EU officials to “tackle human smuggling and trafficking”.[22]

III.1. Economic consequences of enforcement for Agadez

This change affected both the local population of Agadez and migrants transiting Niger. The law’s enforcement took place in a broader context of economic hardship in the region, as the drop in global uranium prices had led to the closure of mines and thousands of local jobs lost.[23] Additionally, many locals whose work depended on the arrival of migrants in Agadez lost their jobs or saw sharp declines in revenue. This resulted in rising reports of road banditry as well as drug and alcohol smuggling.[24]

With an average population age of 20,[25] the law’s strict enforcement was an unforeseen and particularly devastating occurrence for young people in the Agadez region. As many had been engaged in smuggling of migrants or related activities, they found themselves without an income, some even arrested, and reports suggest that on average 2,000 young Nigeriens left for Libya every week in December 2019.[26] A study by the research institute Clingendael found that the criminalization of smuggling activities led to an increase in revenue in the hospitality sector as more and more international staff were deployed in the Agadez region.[27] However, this did not compensate for the revenue losses of the smuggling economy. Given how embedded migration and smuggling dynamics were in the political economy and livelihoods of Agadez, the effects of Law 2015-36 went beyond the criminalization of smuggling.[28]

The president of the Agadez City Council noted that a sensitization phase to inform the population about the legal changes would have been helpful. [29] Instead, the majority of the local economy became criminalized and moved underground.[30] In 2017, in an effort to prop up the local economy, the EU established an action plan for rapid economic impact in Agadez (PAIERA) under the EUTF umbrella.[31] Its aim was to create alternative job opportunities in the Agadez region, thereby filling the vacuum left by the crippled smuggling economy.[32] Rather than effectively supporting the local population, however, the program has been criticized for its slow implementation, as well as its inefficiency in creating long-term employment opportunities.[33] Despite this EU-funded intervention, domestic discontent with the new law grew, and the Nigerien government was accused of deferring to EU conditions to receive funding.[34]

III.2. Impacts of enforcement on migration

For the people on the move who relied on passage through the migration hub of Agadez before entering the Sahara Desert, the strict enforcement of the law also had significant consequences. According to IOM, the official number of migrants transiting through Niger dropped from 333,891 in 2016 to 69,430 in 2017.[35] However, these figures need to be taken with a grain of salt as the enforcement of the law meant that smugglers and migrants increasingly used bypass routes through remote desert areas which would not be captured by IOM flow monitoring.[36] This adaptation of routes to avoid detection put migrants in a more precarious position. It meant higher prices and exposure to increased risks of exploitation, accidents, and other security concerns.[37] In Niger and Algeria, a six-fold increase in people dying in the desert was seen between 2015 and 2017, as well as increases in kidnapping and banditry.[38]

As police and border controls in Niger increased with the enforcement of Law 2015-36, regional northbound mobility was limited. Effectively the need for migrants to rely on smugglers increased while access to the smuggling infrastructure simultaneously became more difficult.[39] Given its impact on mobility, the law itself has been contested. It has been brought before the ECOWAS court by a coalition of local and international civil society organizations who claim that the law breaches the right of free movement of ECOWAS citizens.[40]

IV. Way forward for Law 2015-36?

Criticism of the law has come not just from civil society and locals of Agadez. Reports suggest that the enforcement of law 2015-36 was not supported by the Nigerien military, who previously benefitted from bribes paid by smugglers and migrants. Some commentators feel that the EU-friendly stance on migration taken by former Nigerien President Bazoum – who was deposed by a military coup in July – was a factor in his overthrow. Bazoum – who had been Interior Minister at the time the legislation was passed – had been closely associated with Law 2015-36 and was domestically criticized for the cooperation with European actors.[41] However, it appears that even Bazoum’s stance on migration cooperation was evolving prior to the coup.  At an international summit in December 2022, Bazoum called for the establishment of a mechanism to encourage regular migration towards Europe, stressing that the EUTF and other existing agreements were no longer appropriate.[42]

While the coup received support from the Nigerien population, the European Union condemned it and suspended its aid and security cooperation.[43] [44] However, European countries have been divided in their stance on humanitarian aid contributions for Niger. While Germany and France stopped their development aid, Denmark continued to provide it, warning that an isolation of the country could lead to even more displacement.[45] More recently, the EU launched a humanitarian air bridge providing essential medical supplies, partially resuming its humanitarian response.[46] This period of uncertainty has been seized on, as according to a key informant in Niger, former smugglers in the Agadez region approached the regional authorities to request a suspension of Law 2015-36, reasoning that cooperation with the European Union had ceased.[47] Furthermore, there have been reports of a relaxation of the controls of migrants on routes to northern Niger following the coup.[48] While the regional authorities cannot decide on a suspension of the law, it appears that the law had also been under review at the national level prior to the coup.[49] It remains to be seen how these shifting dynamics will affect the law and its enforcement going forward, but it is notable that both before and after the rupture caused by the coup, Law 2015-36 has been a subject of debate and critique both internally and externally.

[1] Mixed Migration Centre (2021) “Fixing” people in place through policy and development? Efficacy and unintended consequences of migration deterrence in Kantché

[2] Xchange (2019) Agadez: Voices from a Historical Transit Hub Niger Report 2019 (Part One)

[3] Bisong, A., Jegen, L., Mounkaila, H. (2023) What does the regime change in Niger mean for migration cooperation with the EU?

[4] Valletta Summit on Migration (2015) Valletta Summit, 11-12 November 2015 Action Plan

[5] Castillejo, C. (2016) The EU’s response to the “Refugees Crisis”: One year after the Valetta Summit ; Jegen, L. (2020) The political economy of migration governance in Niger ; For an extensive analysis of the political, legal and financial instruments through which the EU and Niger cooperated in the field of asylum between 2015 and 2021 see ASILE’s Country Report Niger (2022) and the timeline at the end of this case study.

[6] Guebs, A., Zutterling, C. (2021) Gestion des migrations en Afrique de l’Ouest : focus sur la Côte d’Ivoire et le Niger – Groupe de recherche et d’information sur la paix et la sécurité

[7] Misereor (2023) Misereor: Country brief on EU-migration partnership with Niger

[8] Ibid.

[9] Mounkaila, H., Maga, H. (2010) La gestion des migrations internationales au Niger : défis, enjeux et perspectives

[10] République de Niger (2015) Loi 2015-36 relative au trafic illicite de migrants

[11] Ibid.

[12] Spijkerboer, T. (2019) The new borders of Empire ; ASILE (2023) Asylum for Containment – EU arrangements with Niger, Serbia, Tunisia and Turkey

[13] Ibid. ; ASILE (2022) Country Report Niger

[14] Jegen, L. (2020) Op. cit.

[15] Mixed Migration Centre (2021) Op. cit.

[16] GI-TOC (2023) Niger-Regional-migration-and-gold-mining-consolidate-as-smuggling-to-Libya-stagnates; Alarmephone Sahara (2023) Report on the Trasnational Conference on the criminalisation of migration 27 and 28 February 2023 in Niamey, Niger; Howden, D., Zandonini, G. (2018) Niger: Europe’s Migration Laboratory

[17] Howden, D., Zandonini, G. (2018) Op. Cit

[18] ASILE (2022) Op. cit.

[19] Clingendael (2018) Effects of EU policies in Niger

[20] Clingendael (2017) Migration and Markets in Agadez : Economic alternatives to the migration industry ; Hamani, A., Bontianti, A. (2015) Agadez, un nœud de la migration internationale au Niger

[21] European Commission (2016) Second Progress Report: First Deliverables on the Partnership Framework with third countries under the European Agenda on Migration

[22] Ibid.

[23] Clingendael (2018) Op. cit.

[24] Ibid.

[25] Gouvernement du Niger (2022) Agadez en chiffre 2022

[26] Xchange (2019) Op. cit. ; Bird, L. (2020), Human Smuggling in Africa The creation of a new criminalized economy

[27] Clingendael (2017) Op. cit.

[28] Ibid.

[29] Ayouba Tinni, B. (2017) Niger-France-UE

[30] Xchange (2019) Op. cit.

[31] European Commission (2017) EUTF Plan d’action impact economique rapide à Agadez

[32] European Commission (2016) Op. cit.

[33] Howden, D., Zandonini, G. (2018) Op. Cit

[34] Clingendael (2018) Op. cit.

[35] IOM (2022) Infosheet – Niger – October 2022

[36] Zandonini, G. (2018) The new European border between Niger and Libya

[37] GI-TOC (2023) Op. cit.

[38] Bird, L. (2020), Op. cit.

[39] Moser (2020) The adverse effects of Niger’s anti-smuggling law ; Spijkerboer, T. (2019) Op. cit.

[40] ASGI (2022) Niger: Complaint lodged against the Law criminalising the transit of migrants ; As a zone of economic cooperation with 15 member states, ECOWAS grants its citizens visa-free movement for up to 90 days and trade across its borders.

[41] The Guardian (2023) Niger observers link coup to president’s support for EU migration policies

[42] Mixed Migration Centre (2022) Quarterly Mixed Migration Update Q4 West Africa

[43] Politico (2023) EU suspends Niger financial support, security cooperation after coup

[44] Bisong, A., Jegen, L., Mounkaila, H. (2023) Op. cit.

[45] Africa News (2023) Denmark resumes its development aid to Niger

[46] European Commission (2023) Niger: EU launches Humanitarian Air Bridge operation to relieve medical supply shortages.

[47] Discussion with migration expert based in Niamey on 26 September 2023.

[48] Arab News (2023) How coups in Niger, Mali and Burkina Faso have further destabilized Africa’s Sahel belt

[49] Mixed Migration Centre (2023) Op. cit.