A/HRC/41/38/Add.1 and Europe and was a key migration nexus in migration flows transiting the West African region.17 30. The Special Rapporteur notes with concern that the law has many weaknesses and fails to comply with international human rights norms and standards. It criminalizes the activities of those who facilitate the irregular entry, stay and exit of migrants, including those who procure or possess fraudulent travel or identification documents and transport passengers without valid travel or identity documents (art. 20). By effectively prohibiting private companies in Agadez from transporting migrants regardless of their status, the law shifts the responsibility of migration management to private actors. Furthermore, the law allows the detention of migrant victims of illicit smuggling, without even clarifying the grounds for such detention (art. 30).18 It lacks clarity as to who is the victim and who is the perpetrator – confusing both, which results in the criminalization of migrant victims of illicit smuggling. Despite the purported aims of the law (art. 1), it adopts a punitive approach to migration, is contrary to the ECOWAS principle of freedom of movement and prioritizes the repression of irregular migration over preventative measures against the illicit smuggling of migrants and at the expense of the protection of their human rights. 31. During his visit, the Special Rapporteur heard numerous concerns about flaws and challenges in the implementation of the law, such as its misguided interpretation and implementation by law enforcement officials and judges, a lack of coordination among State actors and insufficient work on prevention and awareness-raising. Furthermore, as the Special Rapporteur observed at meetings with public authorities, smuggling is often confused with trafficking offences, which leads to the further criminalization of migrants. The Special Rapporteur regrets that the decree on trafficking in persons has been overshadowed by the implementation of the Law on the Illicit Smuggling of Migrants, to the detriment of the rights of migrants, including victims of trafficking, and their protection.19 Consequently, he recommends that the Niger adopt a law on trafficking and standard operating procedures for its implementation, and that it strengthen national mechanisms for victim identification and referral, as an effective means to enhance the protection of victims, in compliance with international human rights norms and standards. 32. The implementation of the law on smuggling has resulted in a de facto ban of all travel north of Agadez, in violation of the principle of freedom of movement of ECOWAS nationals within the region. This has pushed migrants into hiding, rendering them more vulnerable to abuse and human rights violations and making it more difficult for them to gain access to assistance and protection services. During his visit to Agadez, the Special Rapporteur collected accounts of migrants, including unaccompanied migrant children, who live in very poor conditions in migrant ghettos. They only dare to go out at night to avoid being stopped by the police. Their homes have been raided, and they are subjected to arbitrary arrest and extortion. Obtaining access to food, shelter and health is extremely difficult for these migrants – especially due to fears of being detected by the police – although a few NGOs try to assist them with health care. Pushing migration underground has also had a negative impact on NGOs and other actors’ ability to reach and assist migrants. 17 18 19 8 See Samuel Hall, Selling Sand in the Desert: the Economic Impact of Migration in Agadez, study commissioned by IOM Niger (Nairobi, 2017); and Anette Hoffmann, Jos Meester and Hamidou Manou Nabara, Migration and Markets in Agadez: Economic Alternatives to the Migration Industry (The Hague, Clingendael Institute, 2017). Under the 2015 Law on the Illicit Smuggling of Migrants hundreds of people have been arrested and convicted, and hundreds of vehicles have been confiscated in Agadez. Hamadou “La géstion des flux migratoires au Niger”, p. 7, and Hoffmann, Meester and Nabara, Migration and Markets in Agadez, p. 25. The Special Rapporteur on trafficking in persons, especially women and children, has noted that the main challenges common to all transit countries relate to a recurrent confusion between trafficking and smuggling, and an inadequate legal framework and standard operating procedures or their correct implementation, which contribute to the non-identification and misidentification of victims and possible victims of trafficking in transit to their destination (A/HRC/38/45, para. 33).