- Program in Refugee and Asylum Law
- Additional Resources
Dr. Marina Sharpe
There are moves ongoing in Africa to create a single continental market for people, goods, services, and capital, much like that of the European Union (EU). Following similar arrangements in place at the sub-regional level, the African Union’s (AU) Assembly of Heads of State and Government adopted the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment (the Free Movement Protocol) in early 2018. The Free Movement Protocol has been signed by thirty-two AU member states and ratified by four: Mali, Niger, Rwanda and São Tomé & Príncipe; it is eleven ratifications short of entry into force. In addition, the AU’s agreement establishing the African Continental Free Trade Area entered into force in April 2019 after receiving its twenty-second ratification.
This article explores how the Free Movement Protocol could threaten refugee protection, with a goal of stimulating discussion in this regard prior to entry into force. While the Free Movement Protocol will certainly create economic opportunities, it poses two significant and related risks to refugee protection. First, there is a risk that the Free Movement Protocol’s regime for the regional free movement of persons, coupled with the rights of residence and establishment (together, the Free Movement of Persons), will be widely viewed as an alternative to refugee protection. Second, this perception could contribute to the emergence in Africa of a system similar to the regime under the EU’s Protocol on Asylum for Nationals of Member States of the European Union (the Aznar Protocol). This article begins with historical and substantive background on the Free Movement Protocol and then addresses its two main risks.
The process that gave rise to the Free Movement Protocol began in 1991 with the adoption of the Treaty Establishing the African Economic Community (the Abuja Treaty), in which States Parties agreed to the “gradual removal … of obstacles to the free movement of persons … and the right of residence and establishment,” through individual, bi-lateral and sub-regional measures. The Economic Community of West African States (ECOWAS) had already adopted initial sub-regional measures in 1979; initial measures emerged in the East African Community (EAC) in 1999 with the adoption of that Community’s establishing protocol. The idea of continent-wide free movement was resurrected in 2015 with the adoption of Agenda 2063, which sets out Africa’s vision for the future. Agenda 2063’s second aspiration is for an “integrated continent” including “seamless borders” and the “free movement of people.”
Under the Abuja Treaty, Member States also agreed “to conclude a Protocol on the Free Movement of Persons, Right of Residence and Right of Establishment.” Twenty-five years later, an AU Executive Council resolution began this process. The Council engaged law professor Vincent Chetail to draft the instrument. AU Member States considered the draft during 2017 and adopted the final text at the AU’s 30th summit in January 2018. The Free Movement Protocol’s sole objective refers back to the Abuja Treaty, noting its goal is “to facilitate the implementation of the … [Abuja Treaty] by providing for the progressive implementation of the free movement of persons, right of residence and right of establishment in Africa.”
Once in force, the Free Movement Protocol will be implemented progressively in three phases. During the first phase, States Parties will implement freedom of movement by abolishing visa requirements for AU Member State nationals. In phase two, States Parties will implement the right of residence. States Parties will implement the right of establishment in the final phase. None of these rights and freedoms, however, is as broad as the Free Movement Protocol’s full title might suggest. Freedom of movement and the right of residence are each limited by host state law, while the work allowed under the right of establishment is limited to self-employment and similar economic activity. These limits are not surprising in light of the contemporary state of integration in Africa. According to The Economist, on “average, Africans need a visa to travel to 54% of the continent’s countries; it’s easier for Americans to travel around Africa than it is for Africans themselves.”
The Free Movement Protocol addresses refugees in article 24(1), providing that States Party may establish “specific procedures for the movement of specific vulnerable groups including refugees, victims of human trafficking and smuggled migrants, asylum seekers and pastoralists,” and that any such procedures must “be consistent with … obligations … under the international, regional and continental instruments relating to the protection of” such persons. The Free Movement Protocol nevertheless opens the door to parallel refugee protection regimes among Member States, which would operate alongside existing arrangements under the Convention relating to the Status of Refugees (1951 Convention) and the Organization of African Unity Convention Governing the Specific Aspects of Refugee Problems in Africa (1969 Convention). The refugee protection risks posed by the Free Movement Protocol stem from such parallel arrangements and from the Free Movement Protocol more generally.
3. The Free Movement of Persons as an alternative to refugee protection?
The Free Movement Protocol’s greatest refugee protection risk relates to how it is, and may be, viewed by international, AU, and Member State officials. Some officials have remarked that once in force, the Free Movement of Persons will be a substitute for refugee protection among States Party to the Free Movement Protocol. The evidence in this regard is, by its very nature, anecdotal, and limited to statements of and discussions with relevant officials in Chatham House Rule environments. Such evidence would not normally pass scholarly muster. However, the purpose of this article is in part to contribute to preventing this problematic view from becoming entrenched. If this were to happen, it could lead to the AU and its Member States divesting—in terms of both funds and energies—from national refugee protection regimes and supportive supranational activities. The point, in other words, is to call attention to this view while evidence of it remains sparse and circumstantial, in order to forestall it becoming widespread.
The Free Movement Protocol will indeed make it easier for refugees to flee countries where they fear persecution or other serious harm, for example through the abolition of visa requirements. (It will be particularly beneficial for forcibly displaced persons who do not qualify for refugee protection.) It will also likely facilitate local integration. The problem, however, with construing the Free Movement of Persons as a substitute for refugee protection is that it does not address the specific needs of refugees. It does not guarantee entry. Rather, as mentioned above, the “right to enter, stay, move freely and exit” is subject to “the laws, regulations and procedures of the host member state.” Furthermore, the Free Movement Protocol neither protects refugees from penalization for unlawful entry nor guarantees their access to identity papers or travel documents. Most importantly, the Free Movement Protocol does not protect from refoulement, the sine qua non of refugee status. To the contrary, under the Free Movement Protocol an individual can be expelled from her host state as long as the expulsion proceeds in accordance with national law. Because host state law will likely only protect recognized refugees and asylum seekers from refoulement, there will be a significant protection gap for individuals who seek protection from persecution or other serious harm under the Free Movement Protocol.
Framings of the Free Movement Protocol as an alternative to refugee protection cannot be divorced from the Global Compact on Refugees (GCR), which articulates the international community’s new approach to refugee protection. Expanding access to third country solutions is among the GCR’s four overarching objectives; the “solutions” portion of the Compact’s Programme of Action thus includes a section on “complementary pathways for admission to third countries.” However, the GCR notes the importance of complementary pathways containing “appropriate protection safeguards;” among the pathways identified (family reunification, community sponsorship, humanitarian and educational programmes, and “labour mobility opportunities for refugees”), most would likely provide protection from refoulement (educational opportunities being the exception). UNHCR has perhaps been so effective in promoting “complementary pathways” that unsuitable options have now entered the mix. This is surprising given that as recently as a decade ago, some ECOWAS member states viewed that community’s 1979 Protocol Relating to Free Movement of Persons, Residence and Establishment (and its four supplementary protocols) as inapplicable to refugees.
4. Refugee protection among states party to the Free Movement Protocol
The Free Movement Protocol’s second risk to refugee protection is more speculative and depends on the nascent issue identified above becoming entrenched. The danger is that closer integration under the Free Movement Protocol, coupled with a widely held view of the Free Movement of Persons as obviating refugee protection, could lead to Aznar Protocol-style arrangements under the Free Movement Protocol’s article 24(1). The Aznar Protocol allows any EU member state to deny any refugee claim from the national of another EU member state and declare the claimant inadmissible, based on the assumption that all EU countries are “safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters.” This issue played out in the opposite causal direction in Europe, where regional integration and the 2007 Aznar Protocol impacted the EU’s subsequent refugee law (the 2011 Qualification Directive), which does not apply to EU Member State citizens. Indeed, Durieux argues that “the EU concept of asylum induces the phenomenon of a ‘vanishing refugee’, whereby the central character of the 1951 Convention regime, namely the refugee, is blurred, marginalised or ignored”; he traces this in part to free internal movement within the EU.
Two factors mitigate the possibility of Africa going the direction of Europe. The first is sub-regional precedent, which is more likely than the EU to inspire the continental approach. For example, article 7(8) of the EAC Protocol on the Establishment of the East African Community Common Market provides that the “movement of refugees within the Community shall be governed by the relevant international conventions.” International law thus clearly governs the question of refugee protection within the EAC, preventing the emergence of parallel systems within the sub-region. The second factor is the Free Movement Protocol’s article 24(2), which, when read with the 1969 Convention, provides a safeguard similar to that in the EAC’s article 7(8). As a reminder, article 24(2) of the Free Movement Protocol provides that any procedures established by a Member State under article 24(1) must “be consistent with the obligations of that Member State under the international, regional and continental instruments relating to” refugees. Parallel arrangements under the Free Movement Protocol must therefore be consistent with the 1969 Convention, which applies to “every person” and must be applied “to all refugees without discrimination as to … nationality.” Any parallel refugee regime established under article 24(1) of the Free Movement Protocol that purported to exclude state party citizens from refugee protection would thus be inconsistent with the 1969 Convention, and therefore with the Free Movement Protocol’s article 24(2).
Fifteen years ago, industrialised countries were beginning to “question the logic of routinely assimilating refugees,” while “refugees in less developed states … [had] been detained, socially marginalized, left physically at risk, or effectively denied the ability to meet even their most basic needs.” Against this background, it is not unreasonable to welcome officials’ inclination to consider how the Free Movement Protocol might benefit refugees. It is, however, equally important to bear the unique and specific nature of refugee protection in mind. The purpose of refugee law “is to ensure that those whose basic rights are not protected … in their own country are, if able to reach an asylum state, entitled to invoke rights of substitute protection.” While the Free Movement Protocol may indeed make it easier for refugees to reach asylum states, the instrument does not respond to “the particular disabilities that derive from involuntary migration.” In addition to enjoying their civil and political and socio-economic rights, refugees must also be able to access identity papers or travel documents and be protected from penalization for unlawful entry into the host state. And, crucially, refugees must be protected from refoulement. The Free Movement Protocol does not provide these guarantees. African integration under the Free Movement Protocol must not erode the “specificity” of refugee protection.
* DPhil (Law), Oxon.
 African Union [AU], Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment (Jan. 29, 2018), https://perma.cc/V8AD-56W4 [hereinafter the Free Movement Protocol].
 Id. at art. 33(1); African Union [AU], List of Countries which have Signed, Ratified/Acceded to the Protocol to the Treaty Establishing the African Economic Community Relating to the Free Movement of Persons, Right of Residence and Right of Establishment (July 16, 2019), https://perma.cc/N7SB-KLEW.
 Economic Community of West African States [ECOWAS], Protocol Relating to Free Movements of Persons, Residence, and Establishment (May 29, 1979), https://perma.cc/GK5V-QQDS [hereinafter 1979 Protocol].
 ECOWAS member states are Benin, Burkina Faso, Cabo Verde, Côte d’Ivoire, the Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Niger, Nigeria, Senegal, Sierra Leone and Togo. The EAC is comprised of Burundi, Kenya, Rwanda, South Sudan, Uganda and Tanzania. Treaty for the Establishment of the East Africa Community (1999), https://perma.cc/ZLN6-ZY42; ECOWAS – Economic Community of West African States, United Nations Econ. Comm’n for Africa (2015), https://perma.cc/9CS6-L2UA.
 Abuja Treaty, supra n.4, at art. 43.
 The Free Movement Protocol, supra n.1, at art. 2.
 Id. at art. 5.
 Id. at art. 1 & 17(2), which specifies that the “right of establishment shall include the right to set up in the territory of the host Member State: (a) a business, trade, profession, vocation; or (b) an economic activity as a self-employed person.”
 A Dream of Schengen: Visa-free Travel in Africa Remains Far Off, The Economist (June 9, 2017).
 The Free Movement Protocol, supra n.1, at art. 24(1).
 In the context of the COVID-19 pandemic, it is worth noting that under article 37(1), any State Party “may suspend, temporarily, the implementation of the provisions of the present Protocol in case of grave threats to national security, public order and public health.”
 It should be noted that the flagship 2018 AU & IOM ‘Study on the Benefits and Challenges of Free Movement of Persons in Africa’ does not take this view. African Union [AU] & The Int’l Org. for Migration [IOM], Study on the Benefits and Challenges of Free Movement of Persons in Africa (Jan. 2018), https://perma.cc/XEM6-EUVX.
 See generally Marina Sharpe, The Regional Law of Refugee Protection in Africa chap 6 (Oxford University Press 2018) (providing an overview of AU engagement with refugee protection).
 The Free Movement Protocol, supra n.1, at art. 6(1).
 Id. at art. 21(1).
 U.N. High Comm’r for Refugees, Rep. of the United Nations High Commissioner for Refugees, Part II, Global Compact on Refugees, U.N. Doc. A/73/12 (Part II), at paras. 7, 94-96 (2018), https://perma.cc/QYT4-TMZH.
 Id. at paras. 94-95.
 Aderanti Adepoju, Alistair Boulton & Mariah Levin, Promoting Integration Through Mobility: Free Movement Under ECOWAS, 29 Refugee Survey Quarterly 120, 138-39 (2010).
 Protocol on Asylum for Nationals of Member States, 2004 O.J. (C 310/362); Treaty of Amsterdam Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts, Oct. 2, 1997, 1997 O.J. (C 340) 1, https://perma.cc/U5GT-FGL9.
 See generally Elspeth Guild, The Europeanisation of Europe’s Asylum Policy, 18 International Journal of Refugee Law 630 (2006).
 Jean-François Durieux, The Vanishing Refugee: How EU Asylum Law Blurs the Specificity of Refugee Protection, in The Global Reach of European Refugee Law 228 (Hélène Lambert, Jane McAdam & Maryellen Fullerton, eds., Cambridge University Press 2013).
 Id. at 236-44.
 While the 1969 Convention could in theory be amended, this would not be easy to accomplish as it requires the approval of two-thirds of states parties.
 James C. Hathaway, The Rights of Refugees under International Law 3 (Cambridge University Press 2005).
 Id. at 5.
 Id. at 110.
 Durieux, supra n.28, at 189.
Suggested Citation: Marina Sharpe, The Free Movement of Persons within the African Union and Refugee Protection, RefLaw (May 25, 2020),