Control of Migrants under the Immigration Act 2015

Published 17 July 2017

NIGERIAN IMMIGRATION PRACTICE AND PROCEDURE DETENTION OF EXPATRIATES AND MIGRANTS – HAS THE IMMIGRATION ACT CROSSED THE LEGAL THRESHOLD?

The Security and wellbeing of the citizens are the paramount objectives of every progressive government. Section 14 (2) (b) of the 1999 Constitution of the Federal Republic of Nigeria provides that the security and welfare of the people shall be the primary purpose of government. It is also in keeping with Sanctity of Border, Territorial Integrity and Principle of Sovereignty under International Law that nations impose measures to ensure the protection of sovereignty and citizenry particularly in the face of increased acts of terrorism and refugee related challenges.

The Nigerian Immigration Act 2015 confers the power of administering the Act, control of persons entering or leaving Nigeria, border surveillance, issuance of travel documents and due enforcement of all laws relating to the immigration and emigration into and out of Nigeria on the Nigerian Immigration Service headed by the Comptroller General of Immigration. The repealed Immigration Act 1963 was generally criticized as lacking the necessary bite and for not conferring strict and express powers on the agencies charged with its administration. Indeed, Immigration laws in various jurisdictions the world over envisage the violation of such laws either wittingly or unwittingly and confer wide powers to arrest and detain erring persons. Indeed, in September 2011 the United States Immigration and Customs Enforcement (ICE) arrested more than 2,900 previously convicted aliens in an operation targeted at removing persons who had violated extant USA immigration laws and regulations with a view to prosecuting and repatriating the offenders. Nations need to protect the socio-economic interests of their citizens as well as protect them from the unhealthy consequences.

Recognizing the above objectives and in a bid to ensure strict adherence to laid down laws, the Immigration Act empowers, the Minister of Interior, the Nigerian Immigration Service and the Nigerian Courts, where necessary, to detain persons suspected to have violated the provisions of the Act for the purpose of establishing their guilt and enforcing specific provisions of the Act. Section 26 of the Act empowers an Immigration Officer to detain, after due examination, any person who appears to him to be a prohibited immigrant who enters Nigeria by inland waters or overland. Furthermore, Section 31 of the Act empowers the Minister of Interior or the Comptroller General to prohibit the departure of any person who is yet to satisfy an order of a court of competent jurisdiction or against whom a warrant of arrest had been issued.

Section 50(1) of the Act provides that where a recommendation for deportation is in force in respect of an offender he shall be detained unless the Minister otherwise directs. Section 50(2) also provides that where a deportation order is in force in respect of an offender, he may be detained under the authority of the Minister until he is removed from Nigeria pursuant to the Act.

Whilst Section 52 of the Act empowers an Immigration Officer to detain, within a reasonable time, prohibited immigrants who are due for deportation from Nigeria, Section 53 of the Act empowers the Minister to direct the detention of any person against whom a detention order has been made where the deportation is impracticable or prejudicial to national interest. Section 63 of the Act also empowers the Division of Irregular Migration (established under Section 62 of the Act) to arrest, detain and prosecute offenders under the Act or any other law relating to smuggling of migrants and similar offences.

The most controversial provision of  the Immigration Act as regards the detention of persons is Section 48(1) which provides inter alia “ where a person is charged with an offence upon conviction of which the offender may be recommended under this Act or any other Act for deportation …; and notwithstanding the provision of any other Act or enactment, the offender at the hearing may be remanded in custody for a period not exceeding 21 days at the first instance, and thereafter as occasion may require, the offender may be so remanded from time to time, but in no case shall the total period of remand exceed 90 days”.

The Section clearly confers the power to detain an immigrant whose possible punishment may climax in his deportation for a period not exceeding 3 months. This power is conferred solely on the court and not the Immigration Service or the Minister. It purports that, during trial, the offender may be detained whilst a deportation order is being awaited by the Minister. This Section has received severe knocks from commentators, analysts and immigration experts who consider it in violation of extant Laws, Regulations and Treatise on fundamental human rights. Denying an immigrant his freedom of movement and other basic rights whilst awaiting a deportation order is unacceptable.

Section 17 of the Nigerian Constitution which provides for Fundamental Objectives and Directive Principles of State Policy states that the state social order shall be founded on Freedom, Equity and Justice. It is clearly against this fundamental principle to detain a foreigner for a period as long as 3 months without handing a formal sentence or issuing a deportation order as the case may be.

As laudable as the provisions of the Immigration Act are, it is important that the Act and the enforcement thereof do not project the Country as one with scant regard for human rights and as such the offending provisions in the Act should be expunged. Subjecting an immigrant to such torturous humiliation as to deprive him of his liberty for months pending the issuance of an administrative order is repulsive. Specific timeframes for issuing relevant deportation orders should be set to curtail the exercise of Ministerial discretion. Allowing Immigration officers to detain immigrants for “a reasonable time” should be discouraged, as the term “reasonable” is subjective and could be abused.

Whilst the extant provisions of the newly enacted Immigration Act are yet to be subjected to  robust judicial review, it is hoped that when this is done, the true intent of the Act will be achieved without imposing undue restrictions to personal freedom and universally acknowledged rights and privileges.

by the Minister. This Section has received severe knocks from commentators, analysts and immigration experts who consider it in violation of extant Laws, Regulations and Treatise on fundamental human rights. Denying an immigrant his freedom of movement and other basic rights whilst awaiting a deportation order is unacceptable.

Section 17 of the Nigerian Constitution which provides for Fundamental Objectives and Directive Principles of State Policy states that the state social order shall be founded on Freedom, Equity and Justice. It is clearly against this fundamental principle to detain a foreigner for a period as long as 3 months without handing a formal sentence or issuing a deportation order as the case may be.

As laudable as the provisions of the Immigration Act are, it is important that the Act and the enforcement thereof do not project the Country as one with scant regard for human rights and as such the offending provisions in the Act should be expunged. Subjecting an immigrant to such torturous humiliation as to deprive him of his liberty for months pending the issuance of an administrative order is repulsive. Specific timeframes for issuing relevant deportation orders should be set to curtail the exercise of Ministerial discretion. Allowing Immigration officers to detain immigrants for “a reasonable time” should be discouraged, as the term “reasonable” is subjective and could be abused.

Whilst the extant provisions of the newly enacted Immigration Act are yet to be subjected to  robust judicial review, it is hoped that when this is done, the true intent of the Act will be achieved without imposing undue restrictions to personal freedom and universally acknowledged rights and privileges.