The presence of sub-Saharan Africans in the Maghreb countries is not a recent development. Since the advent of “Fortress Europe”, the imposition of individual visas on the countries of the South and the implementation of intra-African restrictions, sub-Saharan migration to the countries of the north of the continent is a growing phenomenon.
In Tunisia, this form of migration accelerated after 2011, mainly since the Libyan migration route became too dangerous. In addition to a shift in the number of immigrants entering the country, the nature of this migration has changed, as more migrants are settling in Tunisia, rather than staying temporarily as transit migrants.
Today, Tunisia finds itself as a subcontractor of the European Union’s migration policy. At the same time, mostly sub-Saharan migrants are the dual victims of the strict Tunisian legal framework that restricts access to the labor market and the security policies preventing Tunisians and non-Tunisians from leaving the country. Migrants thus find themselves at an impasse of being both unable to leave and unable to stay with dignity.
Sub-Saharan Presence in Tunisia: The Magnitude of the Phenomenon
Data collected by local and international organizations reveal the importance of the presence, as well as the precariousness of this category of migrants, in particular post-2011.
According to a 2019 study by sociologist Faten Msakni for the Tunisian Forum for Economic and Social Rights (FTDES), the number of sub-Saharan migrants in the country increased between 2004 and 2018. 79% of those questioned arrived in Tunisia after the Revolution, more precisely between 2014 and 2018. 78% of irregular migrants registered in 2018 are of sub-Saharan origin. The last population census from the National Institute of Statistics (INS), conducted in 2014, reported that 7,524 of Tunisia’s 53,490 foreign residents are from sub-Saharan Africa. This is a 150% increase from approximately 3,000 in 2004. There is no doubt that immigration from sub-Saharan Africa has increased considerably in a decade in Tunisia.
Among sub-Saharan migrants living in Tunisia, people in need of protection represent a significant proportion. The United Nations High Commissioner for Refugees (UNHCR.) registered around 1,000 asylum requests in 2015, in contrast with 5,678 refugees and asylum seekers until the end of October 2020. 2,669 of them are of Sub-Saharan origin.
The Legalized Criminalization of Migration in Tunisia
The criminalization of migration took place gradually from the 1960s.
The first legislation to punish irregular migration was Law n°1968-0007 of 8 March 1968 relating to the condition of foreigners and its implementing decree. This law was passed at a time when the phenomenon of irregular migration was significantly less important. The penalty for people who cross borders irregularly vary between fifteen days and one year in prison and include a fine. Furthermore, up to three years’ imprisonment is the penalty for possession of forged travel documents.
The end of the 1990s marked the beginning of Tunisia’s integration into the process of externalizing the European Union’s (EU) borders whereby border control was subcontracted to countries neighboring the EU. After signing a readmission agreement with Italy in 1998, Tunisia became one of the EU “buffer zones”, a secure space between the West and the rest of Africa in the region’s fight against illegal immigration.
The most serious development concerned the sanctioning of assistance for irregular entry and exit from the territory. The 1968 law already imposed sanctions on people who directly or indirectly assisted illegal entry, exit, movement, or stay in Tunisia. In 1977, the maritime penal code was revised to make providing assistance to irregular migrants a separate offense to attempted irregular migration.
The infamous law 2004-6 of 3 February 2004, amending and supplementing law 1975-40 of 1975 on passports and travel documents, was adopted in order to criminalize complicity in or facilitation of irregular cross-border movements. Initially devised to fight smugglers, this law has often been used to sanction migrants themselves, as well as those supporting them on their journey. The Tunisian state, therefore, adopted the same repressive measures against illegal migration as those for offenses against public order, terrorism, and transnational organized crime. This firmly established the link between the three which both authorized and justified any violations of laws that prevent arbitrariness and guarantee fundamental human rights. Additionally, this denied irregular migrants in Tunisia the possibility of obtaining official migration status and obtaining a residence permit. Instead, irregular migrants are automatically deported, with the theoretical exception of refugees under the protection of the Geneva Convention of 1951.
The deportation processes can also be initiated if a regular migrant is considered to be a threat to the country’s public order. This is a vague legal term that has historically been used for repressive purposes. Although an appeal is possible, migrants who are the subject of a deportation decision do not have sufficient time to initiate a legal procedure because the expulsion is carried out either instantaneously or within eight days of the confiscation of the residence permit.
Apart from physically preventing migrants from seeking asylum, Article 25 of the 1968 law, as well as law 2004-6 make no distinction between smugglers and volunteers providing humanitarian assistance to migrants, including medical care. This includes professionals, who are required to inform the authorities of the location of the migrants. Law 2004-6 also criminalizes the failure to report irregular migrants.
This double criminalization seriously hampers the work of volunteers and civil society organizations. Above all, it decreases the chances of migrants receiving any kind of assistance, marginalizes them even further, and forces them to exercise extreme caution when attempting to seek already scarce assistance. Ultimately, these policies undermine asylum seeker’s chances of obtaining refugee status.
The Outsourcing of European Borders in Tunisia
The promotion of regular migration routes is a prerogative of the EU’s Member States rather than the EU. There has been a growing trend of replacing regular migration opportunities for emigration countries with financial incentives, in particular through the promotion of an investment fund of €44 billion, ending in 2020, called the External Investment Plan (PIE). In the framework of regional dialogues, the focus is clearly on the African continent as the main target of EU migration policy. Thus, within the framework of the Global Approach on Migration and Mobility (AMM), priority is given to the Euro-African Dialogue on Migration and Development (the Rabat process) of which Tunisia has been a member since 2006.
Since 2016, the EU has invested €58 million in the country through three migration-related funds: the Emergency Trust Fund for Africa (AUF), established in 2015 to promote stability and address root causes of irregular migration and the phenomenon of displacement in the continent; the Asylum, Migration and Integration Fund (FAMI) and the European Neighborhood Policy (ENP). These contributions do not take into account bilateral agreements between the EU Member States and Tunisia, nor other development aid investments or anti-terrorism programs with migration aspects. The mobilization and allocation of funds, programs, and funding actors are difficult to track but we are at least certain that the EU has invested a total of €2.5 billion in Tunisia since 2011.
The majority of the funds are from the F.U.A., denounced by organizations such as OXFAM as being too focused on security, an important part being intended for security and border control. In the same vein, a 2016 report from the Directorate-General for External Policies of the European Parliament denounces cooperation in the field of migration focused on the fight against terrorism and the management of migratory flows on the European side, in contradiction with rhetoric focused on consolidating the rule of law and supporting the democratic transition in Tunisia. Although the country has been cooperative on the externalization of borders, the state has always refused to be part of the regional landing platform of the European Council. Fundamentally, the project consists of relocating to the screening process, which differentiates eligible asylum seekers from economic migrants, to the southern shores of the Mediterranean.
Main areas of EU investment related to migration in Tunisia post-2015
There is an urgent need to initiate immediate reforms. First of all, the legal framework governing the stay and work of economic migrants and refugees must be re-imagined to get rid of the criminalizing logic, inconsistent with a state in democratic transition.
As a result, an asylum law must be passed as soon as possible to prevent practices such as refoulement at the borders and detention in undeclared centers. At the same time, the practice of fines for irregular presence should be suspended to reduce the risks of exploitation of migrants, and give them the chance to continue their migratory journey or return to their countries of origin. This would allow the Tunisian legal system to be aligned with its international commitments, in particular concerning Convention 111 concerning discrimination in employment of the International Labor Organization and the 1951 Convention relating to the status of refugees.
Along with legal reforms, a pragmatic approach should be considered, notably by allowing access to education and health care coverage, and by opening a way for the regularization of irregular migrants already exercising a professional activity in Tunisia.
Although the phenomenon of irregular migration, and therefore precariousness, continues to grow among sub-Saharan migrants in Tunisia, the authorities do not seem prepared to take into account either the scale of the problem or the migrants’ situation. Rather than seeking to formalize the migrants’ legal status, the State turns a blind eye to their exploitation in the informal sector to provide national companies an often qualified, cheap, and non-demanding workforce. The main strategy of the state to discourage this type of migration thus seems to be to deprive migrants of their fundamental rights. However, far from dissuading them, the figures show that this strategy pushes them, in fact, to a prolonged underground.
There is, first of all, a historical observation to be made; human beings cannot be prevented from moving. Furthermore, given the widening North-South disparities and the constant sociopolitical instability in Africa, migratory flows from the poorest countries are unlikely to decrease. As the Global North simultaneously toughens its migration policies, the more Africans will have no other choice but to stay within the continent.
• Tunisia should urgently pass an asylum law guaranteeing an adequate legal framework for people in need of protection, in accordance with the inclusion of the right of asylum in the 2014 constitution. As a minimum requirement, Civil society associations and relevant professionals should be allowed to assist migrants’ asylum application processes without risk of criminalization.
• Monetary fines for irregular stay should be suspended for sub-Saharan migrants, as this both exposes them to the most dangerous irregular work contracts and prevents them from returning to their countries of origin.
• In the absence of being able to regularize the situation of sub-Saharan workers in Tunisia, the state should at least guarantee them social security thus allowing them access to health care. This can be achieved through the creation of a specific fund for people in an irregular situation.
 Faten Msakni, “From Sub-Saharan African States to Tunisia: A Quantitative Study on the Situation of Migrants in Tunisia: General Aspects, Pathways and Aspirations” (Tunisian Forum for Economic and Social Rights, 2019), http://ftdes.net/rapports/subsahrianstates.en.pdf, p.2.  Terre d’Asile-Tunisie, “Permanence Sociale et Juridique, Rapport d’activités Du Premier Semestre 2018” (Maison du Droit et des Migrations, 2018), https://maison-migrations.tn/images/RA_annuel_Permanence_sociale_premier_semestre_2018_final__.pdf, p.8.  National Institute of Statistics, “Recensement Général de la Population et de l’Habitat 2014 Principaux indicateurs” (INS, 2015), http://www.ins.tn/sites/default/files/publication/pdf/rgph-chiffres-web_0.pdf, p.34.  Mustapha Nasraoui, “Les travailleurs migrants subsahariens en Tunisie face aux restrictions législatives sur l’emploi des étrangers,” Revue européenne des migrations internationales 33, no. vol. 33-n°4 (December 1, 2017): 159–78, https://doi.org/10.4000/remi.9244.  WMC and TAP, “La Tunisie compte plus de 2700 réfugiés et demandeurs d’asile venus d’Afrique subsaharienne et de Syrie,” Web Manager Center, November 27, 2019, sec. Afrique, https://www.webmanagercenter.com/2019/11/27/441796/la-tunisie-compte-plus-de-2700-refugies-et-demandeurs-dasile-venus-dafrique-subsaharienne-et-de-syrie/  https://data2.unhcr.org/en/country/tun  https://data2.unhcr.org/en/documents/details/82883  Parliament of the Republic of Tunisia, “Law N ° 1968-0007 Of March 8, 1968 Relating To The Condition Of Foreigners In Tunisia.” (Official Journal of the Republic of Tunisia, 1968), https://www.refworld.org/pdfid/54c25b2b4.pdf  Without valid travel documents, through unofficial checkpoints, or without visa when required  Both for Tunisians and for third country nationals who have passed through the country.  Parliament of the Republic of Tunisia, “Maritime Disciplinary and Penal Code” (Official Journal of the Republic of Tunisia, 1977), https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/88040/100558/F1260683681/TUN-88040.pdf.  Parliament of the Republic of Tunisia, “Organic Law N ° 2004–6 of February 3, 2004 Relating to Passports and Travel Documents” (Official Journal of the Republic of Tunisia, 2004), http://www.legislation.tn/sites/default/files/fraction-journal-officiel/2004/2004F/011/TF200461.pdf.  Parliament of the Republic of Tunisia, “Law No. 1975-40 Of 1975, Relative To Passports and Travel Documents” (Official Journal of the Republic of Tunisia, 1975), https://www.refworld.org/docid/3ae6b54e8.html.  Geisser, “Tunisie, des migrants subsahariens toujours exclus du rêve démocratique.”  Benjemia and Ben Achour, “Plaidoyer pour une réforme des lois relatives aux migrants, aux étrangers et à la nationalité en Tunisie.”  Hamza Meddeb, “Courir Ou Mourir : Course à El Khobza et Domination Au Quotidien Dans La Tunisie de Ben Ali” (thesis, Paris, Institut d’études politiques, 2012), http://www.theses.fr/2012IEPP0030, p. 389.  Including doctors and lawyers.  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European Commission, “Tunisia – European Neighbourhood Policy And Enlargement Negotiations,” Text, European Neighbourhood Policy And Enlargement Negotiations – European Commission, 2016, https://ec.europa.eu/neighbourhood-enlargement/neighbourhood/countries/tunisia_en.  The 2017 OXFAM report highlights the contradiction between official EU rhetoric aimed at promoting channels of regular migration and mobility between European and African countries, and between African countries themselves, as well as facilitating secure migration and mobility, and the practice of EU donors being mainly oriented towards containment and control. See : : Elise Kervyn and Raphael Shilhav, “Une urgence pour qui ? Le fonds fiduciaire d’urgence de l’Union européenne pour l’Afrique : routes migratoires et aide au développement en Afrique” (OXFAM, 2017), https://www-cdn.oxfam.org/s3fs-public/bp-emergency-for-whom-eutf-africa-migration-151117-summ-fr.pdf.  Directorate General for External Policies of the EU, “Les Politiques de l’Union Européenne En Tunisie, Avant et Après La Révolution” (European Parliament, 2016), https://www.europarl.europa.eu/RegData/etudes/STUD/2016/578002/EXPO_STU%282016%29578002_FR.pdf.  Mzalouat, “Comment l’Europe contrôle ses frontières en Tunisie ?”  United Nations Human Rights Council, “Compilation on Tunisia – Report of the Office of the United Nations High Commissioner for Human Rights” (UN Human Rights Council, 2017), https://www.refworld.org/docid/590c7a0a4.html. United Nations Human Rights Council, “Report of the Special Rapporteur on the Human Rights of Migrants. Addendum: Mission to Tunisia.”  Ratified by Tunisia in 1959.  Ratified by Tunisia in 1957.