After an anti-smuggling law was repealed, much of smuggling was decriminalised

Last year, Niger did what very few countries have done: it repealed a law criminalising the smuggling of migrants, making many smuggling businesses legal again. This happened after a military coup deposed the Nigerien president in July 2023 and the EU suspended its support to the country, which had included tens of millions of euros for fighting terror threats and combating irregular migration.

Several months later, in November 2023, the eight-year-old law was repealed, and many smuggling businesses that had been forced to underground could operate in the open again.

In the last decade, Niger has become an important focal point for the EU’s border externalisation and border control policies. At the same time, migration policies have also become the litmus test for the relationship between the EU and Niger.

That relationship reached its lowest point when the 2015/36 anti-smuggling law was abrogated. The international community mostly saw this decision as a clear statement against cooperating with the EU to achieve its goals on migration, and wondered how best to respond. Few people asked how the decision has impacted the rights of people on the move in northern Niger.

One year after the repeal of the 2015/36 law, it’s a good moment to ask this question, and look back at what has happened since. But first: some background.

Niger’s anti-smuggling law

Migration through Niger rose to unprecedented levels in the early 2010s. Most people on the move were heading towards Libya, aiming to reach the Mediterranean and eventually Italy. This was a significant shift from the traditional circular and seasonal migration patterns typical of trans-Saharan routes, in which those on the move stayed on the continent. The new trajectories were now largely focused on reaching Europe.

In response to these changes, the European Union made counter-smuggling a cornerstone of its cooperation with North and West Africa. This included bilateral cooperation with Niger on border control and surveillance. The EU’s migration strategy had, officially, three primary objectives: saving and protecting lives; dismantling the business model of smugglers and traffickers; and providing legal pathways for migration.

In 2015, the EU launched the €5 billion Trust Fund for Africa. Fully 20% of this – €1 billion – was earmarked for eradicating the root causes of migration through Niger.

The EU was reportedly “requesting” that Niger work to reduce the number of migrants entering Libya

Meanwhile, a tragedy on 30 October 2013 pushed a response to trans-Saharan movement onto the policy agenda in Niger as well. Ninety-two people lost their lives while on the way to Algeria: 37 women, 48 children, and seven men. Their vehicle had broken down and, stranded in the desert, they had perished.

The Nigerien authorities, driven by a strong societal outcry, recognised the urgent need to safeguard the lives of migrants traversing the perilous desert. At the same time, the EU was reportedly “requesting” that they work to reduce the number of migrants entering Libya – which they couldn’t do very easily without a law prosecuting smuggling.

The result was the 2015/36 anti-smuggling law. The legislation sought to prevent such tragedies by arresting and prosecuting those facilitating irregular migration and offering better protection to those undertaking these dangerous journeys. It aimed to facilitate national and international cooperation to combat the smuggling of migrants, introduced investigative techniques for catching smugglers, established a national coordination body and new processes for the return of smuggled migrants.

Niger’s anti-smuggling law articulated strongly – and intentionally – with the EU’s approach to so-called ‘transit’ countries, which focuses on securing borders, managing (aka blocking) migration, and strengthening security.

Impact of Niger’s anti-smuggling law on mobility

Law 2015/36 has been the subject of significant criticism – particularly in the Agadez region, a key hub for migrants heading northwards – since its inception. Migration has long been a cornerstone of the local economy, engaging a substantial portion of the population in activities such as transporting and hosting migrants, as well as selling essential goods such as food, water, and clothing.

After the law was implemented, the authorities made quick work enforcing it. While accurate data on arrests is hard to come by, it’s reported that hundreds of drivers, brokers and “passeurs”, or smugglers, were arrested, charged with trafficking and had their vehicles seized.

The law’s critics argue that the legislation negatively impacted the local economy in the region of Agadez, which had previously relied on steady numbers of people moving through on their migration journeys. It also fuelled an increase in banditry, as many individuals who once made a legitimate living through the migration industry were left without viable income-generating opportunities – or were forced to do it in secret.

In 2019, the UN Human Rights Committee reported that the anti-smuggling law had “reportedly resulted in a de facto ban on travel north of Agadez,” which was therefore “forcing migrants to go underground and face conditions that expose them to many forms of abuse and human rights violations”.

Journalists, activists, and researchers agreed, arguing that the law had exacerbated the dangerous conditions faced by migrants. Their analyses suggested that the implementation of the law, including heightened border controls, and had compelled drivers to navigate more remote and hazardous desert routes. Data from the International Organisation for Migration (IOM) confirms the toll taken by this change. In 2017, it noted a significant rise in the number of migrants left stranded in the desert, leading to many deaths. They are reportedly being abandoned by their drivers, who feared arrest, after a vehicle had broken down.

These were the human costs of enforcing the law. It’s unclear, however, what Niger received in exchange. Smuggling certainly wasn’t ‘dismantled’. The law primarily targeted low-level migration facilitators, such as drivers and “passeurs”, or guides, rather than influential businessmen involved in larger smuggling networks.

This selective enforcement further led to the professionalisation and consolidation of smuggling activities, with the activity becoming more organised and concentrated in the hands of a few. By 2018, estimates suggested that only 15 to 20 active smugglers remained in Agadez, a sign that smuggling networks had further entrenched among a small number of well-organised criminal elements with transnational links.

Despite the enactment of the law and the resulting repression and militarisation of the Agadez region, migration continued. It just transformed from open and regulated movements into covert operations. The main effect of the implementation of the 2015/36 law was the invisibilisation of migration – not its end.

Repeal of the 2015/36 law

In July 2023, Niger experienced a coup d’état when the presidential guard detained President Mohamed Bazoum. General Abdourahamane Tchiani took control of a new military junta. This political upheaval led to significant changes, including the repeal of the anti-smuggling law in November 2023.

The law was repealed by the new military regime in response to mounting domestic pressures and widespread public discontent, a development which the EU viewed negatively. Various officials expressed concerns about a possible increase in migrant arrivals in Europe as a result.

In Niger, the response was somewhat different. Suddenly, the smuggling businesses in Agadez could operate out in the open again – people heading north could stay in better accommodation that didn’t have to be hidden from view. And the military resumed its support to the “passeurs” by escorting them and their passengers up to the northern borders for their onward travel – making the journey significantly safer for many of those migrating.

Some defenders of law 2015/36 viewed it as a means to protect migrants from traffickers, who they say exploit migrants with false promises of an Eldorado in Europe. However, most research indicates that the biggest threat to migrants on their journeys is their need to make themselves invisible to security forces and observers as well as the lack of legal pathways to Europe.

IOM statistics have not indicated a significant increase in northward migration, even though migration is once again out in the open in Niger

As Moctar dan Yaye from Alarm Phone Sahara told me, the liberalisation of movement in northern Niger since the repeal of the anti-smuggling law has once again allowed people to travel openly during the day without having to hide. He said this change in mobility governance is a positive development for migrants and their human rights, as it makes travel less dangerous and reduces the risks they face.

Additionally, the repeal allows those involved in migration-related businesses to resume their activities openly. This suggests that some of the main negative effects of the law, detailed above, have been addressed by its repeal.

Interestingly, the fears of European policymakers have yet to be borne out by this repeal. IOM statistics have not indicated a significant increase in northward migration, even though migration is once again out in the open in Niger.

Migration governance is mostly driven by the political priorities of countries in the Global North. But if we shift our perspective to prioritise migrant safety and security, what needs to be done changes significantly. The recent repeal of Niger’s 2015/36 anti-smuggling law has not resulted in substantial negative consequences. It has instead had many positive effects for migrants and the local communities serving them.

This maybe an unpleasant conclusion for European policymakers, but it’s the reality check they need. European border externalisation policies cause harm to migrants. At the same time, ending such policies does not ‘open the floodgates’. It’s time for Europe to re-think how it engages African states on migration. This time, it must put migrants’ well-being first.

Explore the rest of the series

This series looks at how the UK, EU and bordering countries are increasingly treating migration as a criminal offence, and targeting migrants and solidarity actors in the name of ‘anti-smuggling’ and ‘border control’.