Introduction
Legal analysis of retaining travellers' passports under Nigerian law
Biometrics for foreign expatriates
Comment


Introduction

The federal government has continued to introduce and enforce a wide range of regulations to limit the spread of COVID-19 in Nigeria. The most recent set of guidelines was issued by the Federal Airports Authority of Nigeria (FAAN) on 3 July 2020. Previously, the Presidential Task Force (PTF) on COVID-19 issued a set of regulations and directives (PTF on COVID-19 Revised Quarantine Protocol). Both the FAAN guidelines and the PTF directives aim to curtail the further spread of COVID-19 and protect airport users.

These directives and guidelines set out what is expected of all travellers predeparture, on board a flight and on arrival in Nigeria. Notably, on arrival in Nigeria, passengers cleared through the Nigeria Immigration System's Migrants Identification Data Analysis System (MIDAS) will have their passports retained until they successfully complete 14 days' self-quarantine.(1)

This article discusses:

  • the safeguarding of passports;
  • the legality of the PTF directives with regard to the requirement for all travellers to submit their passport until they have completed 14 days' self-quarantine; and
  • the violation of the passengers' constitutional rights through the retainment of their passports.

This article also examines the MIDAS biometrics exercise carried out at ports of entry into Nigeria, which collects, processes, stores and analyses migrant information in real time across the border network and provides a strong statistical base for security, migration policy and planning.

Legal analysis of retaining travellers' passports under Nigerian law

A passport is a document of protection and authority to travel issued by the competent Nigerian officials to Nigerians wishing to travel outside Nigeria and includes, by virtue of Sections 1(3) and (4) of the Passport (Miscellaneous Provisions) Act:(2)

  • a standard Nigerian passport;
  • a Nigerian diplomatic or official passport;
  • a Nigerian pilgrim passport; and
  • a seafarer passport or seafarer card of identification.(3)

In a modern sense, a passport is an identity document which a state may, but need not necessarily, require an alien traveller within its territories to furnish. It is a requirement of the state which the traveller is visiting, not of the state of which they are a national.(4) Passports are proof of nationality and are issued after the payment of a fee, which gives the owner an ownership right over the passport.

The right to a passport is derivable from the right of every person to personal liberty under the Constitution(5) and the international legal regime. Under Nigerian law, a passport cannot be lawfully denied to any Nigerian citizen, except in exceptional circumstances. Everyone has the right to leave any country, including their own, and to return to their country.(6)

A passport is treated by both the consular officers of the issuing state and the officials of the state which the holder is visiting as prima facie evidence that the holder is entitled to the national status stated therein.(7) Where an expatriate enters into Nigeria and their passport is taken from them, their movement is restricted and their right of personal liberty entrenched in the Constitution(8) is jeopardised. This right is also available in various international treaties to which Nigeria is signatory.(9) The Constitution guarantees the right of everyone to own immovable property.(10) Hence, no one can be deprived of their property, except as provided by a law.

It can be said that the right of a person to their personal liberty, the right to enter and leave a country and the right to own property are the parents' right to own and retain a passport in Nigeria. Thus, the collection of passports from migrants and returnees could be a breach of their constitutional right. Moreover, the Constitution and international conventions guarantee the right of every lawful resident in the country – be they Nigerian or foreign.

However, Section 45(1) of the Constitution provides that nothing in Sections 37, 38, 39, 40 and 41 of the Constitution will invalidate any law that is reasonably justifiable in a democratic society in the interest of defence, public safety, public order, public morality or public health or for the purpose of protecting the rights and freedom of other persons.

In limited cases, it is possible to seize a person's passport in the interest of others. Thus, it is arguable that temporarily retaining a foreign national's passport could fall under the exceptions specified in Section 45(1) of the Constitution relating to the safeguarding of public health and safety. However, to activate this section of the Constitution, the National Assembly or State House of Assembly should pass a law. Only on that premise will the legality of seizing passports from foreign nationals on their arrival in Nigeria be justified. Some have argued that the inscription on the face of the passport showing that the passport remains the property of the federal government only goes to show the federal government's reversionary right on the passport's expiration and not its ownership right over the same.

In Martin v Hunter,(11) the court held that it would be an affront to all known human rights norms if the right to freedom of exit specifically guaranteed by the Constitution was drained by the government having discretionary and arbitrary power to withdraw or revoke a passport. Hence, the statement on the Nigerian passport that the document may be withdrawn at any time is unconstitutional and contrary to Section 5(1) of the Passport (Miscellaneous Provisions) Act, which provides that the minister may, at any time, cancel or withdraw any passport issued to any person if:

  • the passport is obtained by fraud;
  • the passport has expired;
  • a person unlawfully holds more than one passport at the same time; or
  • it is in the public interest to do so.

Arguably, collecting the passports of foreign nationals during the COVID-19 pandemic could be in the public interest. However, as things stand, this remains unconstitutional unless legislation is passed in that regard.

Biometrics for foreign expatriates

In June 2019 the federal government introduced the electronic registration of migrants and foreign nationals, including through biometric capturing (Nigeria Immigration Service: Migrant E-Registration Guidelines). Foreign nationals must now make a personal appearance to submit their biometrics. Employers that are found to have employed an unregistered foreign national are subject to a fine. Further, those who enter Nigeria after 31 December 2019 and seek to remain in Nigeria for more than 90 days must also register under the system, even though no deadline has been issued for such entrants (whereas those who were already in Nigeria before that time must submit themselves to the Migrant Registration Centre for registration).

To be eligible for biometric e-registration, a person must:

  • be 18 years old;
  • not be a Nigerian citizen;
  • not otherwise be exempt from registration; and
  • intend to reside in Nigeria for more than 90 days.(12)

Persons under the age of 18, persons enjoying diplomatic immunity and immigrants staying in Nigeria for less than 90 days need not undergo this exercise. Migrants may opt to pre-register on the portal and later proceed to the registration office only for biometrics capturing and document verification.

Biometric capturing aims to ensure that all foreign nationals' identities are properly captured. This makes it easier to:

  • trace migrants;
  • improve border security;
  • streamline the immigration process; and
  • identify illegal immigrants.

Comment

Although the purpose of retaining travellers' passports during the compulsory 14 days' quarantine is to ensure that foreign nationals are easily traceable, Nigeria can withhold the passports only of its citizens under the immigration guidelines and requires the permission of the issuing country, and new legislation, to retain any foreigner's passport. In the unlikely event that these travellers test positive for COVID-19 and are not at the designated isolation centres, the information obtained through MIDAS should be explored.

How these passports will be safeguarded is another issue. Logically, any foreigner will be hesitant to let go of their passport for two weeks, bearing in mind that it can be tampered with or result in a case of identity theft. The directives provide no further information on the measures that will be taken to keep passports safe, other than that they will be retained at the ports of arrival in Nigeria.

Some may argue that it is in Nigeria's public interest to ensure the safety and public health of its citizens, as stated in the Constitution. However, the PTF directives are not laws, as provided for by the Constitution. The PTF's aims have been achieved by the biometric capturing of all foreign nationals coming into Nigeria. Thus, it is illegal to collect the passport of a returnee, be they a Nigerian or foreign national, until after they have taken a polymerase chain reaction test and relevant legislation has been passed in that regard.

For further information on this topic please contact Adekunle Obebe, Olamide Soetan or Destiny Chukwuemeka at Bloomfield Law by telephone (+234 1 454 2130) or email ([email protected], [email protected] or [email protected]). The Bloomfield Law website can be accessed at www.bloomfield-law.com.

Endnotes

(1) See Paragraph G of the directive.

(2) Please refer to the Passport (Miscellaneous Provisions) Act, Chapter 343 Laws of the Federation of Nigeria (LFN) 2004.

(3) Please refer to Section 6 of the Passport Act.

(4) Kenneth Diplock, "Passports and Protection in International Law", Transactions of the Grotius Society, Vol 32, Problems of Public and Private International Law, Transactions for the Year 1946 (1946), pp 42-59.

(5) See Section 44 of the Constitution.

(6) See Article 13 of the Universal Declaration of Human Rights (UDHR), Article 12 of International Covenant on Civil and Political Rights (ICCPR) and Article 12 of the African Charter on Human and Peoples' Rights (ACHPR), which was incorporated into Nigerian Law by the ACHPR's (Ratification and Enforcement) Act, Cap 10 LFN, 1990.

(7) Ibid.

(8) Section 35(1) of the Constitution (as amended).

(9) For instance, Articles 3 and 9 of the UDHR, Article 9 of the ICCPR and Article 6 of the ACHPR.

(10) Section 44 of the Constitution.

(11) 4 L Ed 97.

(12) This is provided for in the second schedule to Regulation 24(1)(a) of the Immigration Regulations 2017.