Content of the main national instruments

The preamble to the Constitution of Niger proclaims the people's commitment to human rights as defined by the 1948 Universal Declaration of Human Rights, the 1966 International Covenant on Civil and Political Rights, the 1966 International Covenant on Economic, Social and Cultural Rights, the 1981 African Charter on Human and Peoples' Rights.

Article 32 of the Constitution recognizes the freedom to come and go under the conditions provided by law.

Ordinance n° 81-40 of 29 October 1981 on the entry and residence of aliens in Niger and its implementing decree n° 87-076/PCMS/MI/MAE/C of 18 June 1987 regulating the conditions of entry and residence of aliens in Niger

These two instruments govern the conditions of entry and residence of aliens in Niger and therefore determine the measures applicable to irregular migrants.

The Decree implementing the Ordinance establishes, in article 2, the principle that an alien wishing to enter Niger, must be in possession of a national passport, or a travel document in lieu thereof, stamped with a Nigerien visa and carry an international vaccination certificate. In addition, the alien must provide a document guaranteeing his or her repatriation (for example, a round-trip transportation ticket, a certificate from a banking institution approved by the State of origin guaranteeing the repatriation of the person concerned in the event that he or she is unable to cover the costs themselves, etc.). However, nationals of States that have concluded an agreement with Niger for the reciprocal abolition of visas under the conditions provided for in the agreement, are exempt from the requirement to present a visa (Article 3 of the Decree). Other visa exemptions are provided for by law, involving aliens transiting through Niger by air and who do not leave the airport confines during the stopover.

The 1981 Ordinance provides for sanctions against aliens who have entered Niger illegally or who have been lawfully expelled but have not left Niger within the prescribed period (Article 11 of the Ordinance). The penalties include imprisonment and the payment of a fine.

The Law of 2015

The Law of 2015 is meant to prevent the smuggling of migrants", protect the rights of smuggled migrants, and promote and facilitate national cooperation to prevent smuggling. This new law is the national legal instrument, par excellence, in the field of migrant smuggling; it sets out obligations, rights and principles to combat migrant smuggling and protect those who are victims of this practice.

The 2015 Law imposes obligations on the Nigerien State to combat the smuggling of migrants. Besides, it criminalizes the following acts:

▪ the procurement, in order to obtain, directly or indirectly, a financial or other material benefit, of the illegal entry into Niger of a person who is not a national or a permanent resident of that State or the complicity to that effect (Art 3);

▪ committing or attempting to commit or being complicit in the following acts (Art 10 to 15; Art 19):

o Facilitating the illegal entry or exit into or from Niger of a person who is not a national or a permanent resident;

o producing, procuring, providing or possessing a fraudulent identity or travel document to facilitate the smuggling of migrants;

o Use illegal means to allow a person who is not a national or a permanent resident to remain in Niger without fulfilling the conditions necessary for legal residence.

▪ taking advantage of, abusing the vulnerability or dependence of the trafficked migrant (including vulnerability or dependence resulting from illegal or undocumented entry into the country, pregnancy or physical or mental illness, disability or reduced capacity to form judgments by virtue of being a child) for material benefit or advantage.

Among the aggravating circumstances for these offences, article 16 of the Law provides, inter alia, for the following cases:

▪ where the offence involves circumstances that endanger or threaten to endanger the life or safety of the smuggled migrant or result in inhuman or degrading treatment of smuggled migrants, including where the exploitation or offence has resulted in serious injury to or death of the smuggled migrant, including death by suicide;

▪ the offender is a public official (corruption with a view to committing trafficking is punished in accordance with the Criminal Code);

▪ the trafficked migrant is a child or the perpetrator has used a child as an accomplice or participant in the criminal act;

▪ the trafficked migrant is a pregnant woman;

▪ the trafficked migrant has an intellectual or physical disability,

▪ the offender confiscated, destroyed or attempted to destroy the travel or identity documents of the smuggled migrant.

The Law of 2015 also provides guarantees in terms of the principles of protection and assistance to migrants (Art 25 to 29; Art 4). These include the following:

▪ Emergency medical care cannot be refused because of the migrant’s irregular situation;

▪ Protection and assistance measures must take into account the special needs of women, children, persons with disability and the elderly;

▪ The right of any trafficked migrant to initiate legal proceedings to seek compensation for damage caused. Neither the status of the trafficked migrant nor his or her return to his or her country of origin or outside Niger's jurisdiction should prevent the payment of compensation to the migrant;

▪ Any action by public actors concerning migrant children must take into account the best interests of the child. To this end, the law provides, for example, that

o In case of uncertainty about the age of the trafficked migrant and there are reasons to believe that he or she is a child, he or she should be considered as a child pending verification of his or her age;

o Interviews or hearings with a trafficked migrant child should be conducted by a specially trained professional in a suitable environment, in a language spoken and understood by the child in the presence of his or her parents, guardian or support person;

o The right of access to education for migrant children, including those in an irregular situation in Niger or whose parents are in an irregular situation, is guaranteed.

▪ In general, the application and interpretation of the law complies with international human rights and humanitarian law, the protection of vulnerable groups and refugee law

The Law of 2015 also provides procedural guarantees for migrants deprived of their liberty (Art 30). These include the:

▪ right to contact consular officials, if desired;

▪ right to receive visits from consular officials;

▪ right to maintain contact and correspond with consular officials;

▪ right to receive communications from consular officers without delay;

▪ right to receive information about their rights in their original language.

The specific case of the return of migrants is also covered by the law (Art 34, 35, 37), which provides as follows:

▪ cooperation of the competent authority with international organizations and non-governmental organizations combatting migrant smuggling;

▪ rapid processing of cases of refugees and asylum seekers;

▪ facilitating the return of smuggled migrants to the country of which they are a national or resident at the request of a State Party to the Protocol on Migrant Smuggling or on the initiative of the competent authority.