Migration in Tunisia: Status Quo and the Legal Point of View
Migrants intercepted by Tunisian Security forces after an attempt at illegal migration. Source: ARAB NEWS, 2023
by: Hanen Ben Othman, University of Sousse
Tunisia is a Mediterranean country with 1,300 km of coastline stretching from the Western Mediterranean in the North to the Central Mediterranean in the East. Its sensitive location at the heart of the Mediterranean makes it a departure area of Tunisian and Subsaharan illegal migrants and a key partner for the European Union and its Member States.
Traditionally a country of emigration, Tunisia has gradually become a country of transit of Sub-Saharan migrants towards the “European El Dorado”. Before reaching Tunisia, they cross Libya and Algeria, two countries opening on the Sahel countries such Mali, Niger, Chad and Sudan. Other factors make Tunisia a destination country thanks to the agreements abolishing visas for Nationals of many Sub-Saharan countries (article 7 of law n. 68-7 in March 1968 relative to the condition of foreigners in Tunisia). Finally, it is a preferred destination for many sub-Saharan students for academic reasons.
The Central Mediterranean remains the main migratory route to the EU. In just eleven months (1 January-23 November 2023), 95,000 migrants landed on the Italian coast from Tunisia (Source: Italian Ministry of Interior, 2023).
The Tunisian authorities, for their part, foiled 1,786 irregular maritime border crossing operations and intercepted 47,030 migrants, 11,681 of whom were Tunisians, between January 1, and October 31, 2023. The number of Sub-Saharan migrants who were intercepted reached 44,673, whereas there were 654 Syrians and 811 Sudanese.
Regarding migration by land and according to declarations of the Tunisian Ministry of Interior, the Tunisian authorities foiled 1,227 clandestine land border crossing operations and intercepted 14,822 foreigners including 13,949 from sub-Saharan Africa, between January 1 and October 31, 2023, according to an unpublished report by the Tunisian Ministry of Interior.
Migrants rescued by Tunisian coast guards in Zarzis after their boat sank, Source: CGTN AFRICA
More than numbers, it is a question of human beings who have rights under domestic and international legislation and who deserve to be protected. Therefore, the treatment reserved by the Tunisian authorities to these migrants deserves attention. A distinction will be made in this blog between migrants residing illegally in Tunisia and those intercepted at the Tunisian borders in 2022.
Irregular Migrants residing in Tunisia : an exit more difficult than the entry
With regard to Tunisian law, in particular Law No. 68-7 of March 8, 1968 relating to the condition of Foreigners in Tunisia, migrants who were rescued at sea, intercepted at maritime or land borders and also migrants intercepted inside the Tunisian territory are in an irregular situation. Indeed, article 4 of this law stipulates that: « Entry into and exit from Tunisia can only be made through borders Check Points” listed by the Secretary of State of Interior. The same obligations are included in article 34 of the 1975 law. Under the same article, any person who does not have Tunisian Citizenship and who does not comply with the provisions of this law, will be expelled from Tunisian territory following the request of the police authorities.
Given the limited number of detention centers in Tunisia, only a small proportion of foreigners illegally staying on the national territory are subject to restriction of movement and detention in these centers. However, no category of foreigners in an irregular situation is protected against detention. The most famous detention center is the “Reception and Orientation Center of El Wardiya”. It is managed by the National Guard and the Borders and Foreigners Department/Ministry of Interior. These centers can accommodate rejected asylum seekers, unaccompanied minors according to the IOM, pregnant women, survivors at sea and many other foreigners such as students who have not been able to leave Tunisia as well as foreigners who have served prison sentences. In addition, the material conditions of detention are alarming and degrading.
Upon examining the various texts applicable to foreigners, we realize that the question of the detention of foreigners in Tunisia falls within an area of infra-law [1]. Besides, the maximum detention period is not fixed. Illegal residents are detained until they can afford the financial resources to pay the penalty of illegal overstay as well as their return flight. If they are lucky enough, these migrants would be offered a voluntary return which would be facilitated by the IOM or their embassies.
At first glance we could say that voluntary return appears as a good solution for both the host State and the migrant and that it is much less problematic than forced return. This is not always the case as evidenced by the voluntary return operations, which took place this year in Tunisia following acts of racism, racial and xenophobic discrimination. Did the migrants fleeing this wave of verbal and physical violence who could be repatriated with the help of their embassies and the IOM, really have a choice? We thus see that the line between voluntary return and forced return is blurred.
Treatment reserved to migrants at Tunisia’s borders
2023 has been characterized by the push back of Sub-Saharan migrants through borders to Algeria and to Libya, which is not a safe country. According to testimonies collected by the NGO, at least a hundred candidates for emigration including children and perhaps asylum seekers were mass expelled to Libyan and Algerian land borders in September 2023. They were left without water or food in harsh climatic conditions that many NGOs described as constituting a real torture. As a result, at least 27 migrants were found dead.
Hundreds of sub-Saharan migrants have been abandoned at the desert on the Tunisia-Libya border and are left to fend for themselves without water or food; Source: LINFO.fr
These events constitute dangerous violations of international law, especially of the 1951 Convention and its Protocol relating to the Status of Refugees ratified by Tunisia. The “non-refoulement” core principle of the Convention was violated [1]. Further, collective expulsions are prohibited under international law. Deporting migrants, refugees and asylum seekers without an individual and objective assessment of their situations may expose them to human rights violations. Paradoxically, Tunisia is part of the African Charter on Human and people’s rights. Its article 12 (5) indicates “mass expulsion of non-Nationals shall be prohibited”. Tunisia has also been part of the Convention against torture and other cruel, inhuman or degrading treatment or punishment adopted on 10 December 1984. It has also adhered to the International Convention on civil and political rights. Article 7 of this convention states that “No one shall be subjected to torture, cruel, inhuman, degrading treatment or punishment”.
To conclude, we can say that the migration issue certainly deserves a more peaceful solution that takes into consideration the humanitarian dimension of people’s movements. Tunisia is at a crossroad. Either it turns its back on its duties and international commitments in the field of fundamental rights or it works towards ending these intolerable acts.
[1] - BEN OTHMAN (Hanen), Les étrangers vulnérables en droit tunisien, Revue Tunisienne d’Etudes juridiques et politiques n°6 -2022, p.49 et s.
[2] Article 33 of the 1951 Convention: « No contracting state shall expel or return a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion”.
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