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Rights of migrant workers in an irregular situation and members of their families 2013, para. 79
- Paragraph text
- Legal identity is often a prerequisite for access to a number of fundamental rights. Children of migrants in an irregular situation, particularly those born in a host State that does not recognize their existence, are vulnerable throughout their lives. States parties are obliged to ensure that children of migrant workers are registered soon after birth, irrespective of the migration status of their parents, and provided with birth certificates and other identity documents (art. 29). States parties shall not require migrant workers to present a residence permit in order to register a child, as this would effectively deprive migrant children in an irregular situation of their right to birth registration, which can also deny them access to education, health services, employment and other rights. Non-compliance by migrant workers with the obligation to register their children following birth should never justify their exclusion from education.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 78
- Paragraph text
- While noting that the obligation of the State of employment to endeavour to facilitate the teaching of the mother tongue and culture is explicitly accorded to the children of migrant workers in a regular situation pursuant to article 45, paragraph 3, of the Convention, the Committee emphasizes that the right to respect for one's cultural identity (art. 31) belongs to all migrant workers and members of their families, including children. Considering these two provisions together, along with article 29, paragraph 1 (c), of the Convention on the Rights of the Child, which applies to all children, the Committee is of the view that States parties should also ensure access for children of migrant workers in an irregular situation to mother-tongue instruction if already available to children of migrant workers who are documented as having the same mother tongue.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Movement
- Social & Cultural Rights
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 77
- Paragraph text
- To ensure access to education, the Committee is also of the view that States parties shall not require schools to report or share data on the regular or irregular status of pupils or their parents to immigration authorities or conduct immigration enforcement operations on or near school premises, as this would limit access to education by children of migrant workers. States parties should also clearly inform school administrators, teachers and parents that they are not required to do so either and provide them with training on the educational rights of children of migrant workers.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Equality & Inclusion
- Movement
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 76
- Paragraph text
- The Committee notes that migrant children may suffer from multiple forms of discrimination due to race, ethnicity, gender, and disability, for example. The principle of equality of treatment requires States parties to eliminate any discrimination against migrant children in their educational systems. States parties must therefore avoid segregated schooling and the application of different standards of treatment to children of migrant workers as well as eliminate any forms of discrimination against children of migrant workers in classrooms. States parties also need to ensure that effective programmes, policies and mechanisms are in place to prevent discrimination against these children.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Movement
- Person(s) affected
- Children
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 75
- Paragraph text
- Article 30 of the Convention protects the "basic right of access to education" of all children of migrant workers "on the basis of equality of treatment with nationals of the State concerned." Article 30 also provides that access to public preschool educational institutions or schools shall be without prejudice to the migration status of the child concerned or parents of the child. The Committee, in accordance with article 13 of the International Covenant on Economic, Social and Cultural Rights, is of the view that States parties must provide free and compulsory primary education for all, including children of migrant workers, regardless of their migration status. As such, States parties have an obligation to eliminate all direct costs of schooling, such as school fees, as well as alleviate the adverse impact of indirect costs, such as expenses for school materials and uniforms. Access to secondary education by children of migrant workers must be ensured on the basis of equality of treatment with nationals. Accordingly, whenever children who are nationals have access to free secondary education, States parties must ensure equal access by children of migrant workers, irrespective of their migration status. Similarly, when States parties provide different forms of secondary education, including vocational education, they should also make them accessible to children of migrant workers. The same principle applies to free preschool education or to scholarship schemes. Therefore, whenever children who are nationals have access to free preschool education or scholarships, States parties must ensure equal access by children of migrant workers, irrespective of their migration status.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Education
- Equality & Inclusion
- Movement
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 74
- Paragraph text
- Article 28 prohibits the refusal of such medical care to migrant workers because of an irregularity with regard to their stay and employment. States parties should not use health care as an instrument of immigration control, which would effectively prevent migrant workers in an irregular situation from contacting public health care providers out of fear of deportation. Toward this end, States parties shall not require public health institutions to report or otherwise share data on the migration status of a patient to immigration authorities, and health care providers should also not be required to do so. Moreover, States parties shall not conduct immigration enforcement operations on or near facilities providing medical care, as this would limit migrant workers and members of their families from accessing such care.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Health
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 73
- Paragraph text
- The Committee considers that access to urgent medical care must be ensured to all migrant workers on the basis of equality of treatment with nationals and thus on a non-discriminatory basis. Although medical care need not necessarily be free of charge, equality of treatment requires that the same rules for payment of fees or exemption from payment apply to migrant workers and members of their families as to nationals. States parties should prohibit the charging of excessive fees from migrant workers in an irregular situation or requiring immediate payment or proof of payment before the service is delivered. Urgent medical care should never be withheld due to the inability to pay. States parties should also ensure that migrant workers and members of their families are provided with information on the medical care provided and information about their health rights. States parties should also ensure that doctors and health professionals are provided with culturally sensitive training regarding health care for migrant workers and members of their families.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Health
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 72
- Paragraph text
- Article 28 of the Convention provides for migrant workers and members of their families to have the right to receive any medical care that is urgently required for the preservation of their life or the avoidance of irreparable harm to their health on the basis of equality of treatment with nationals. Article 28, however, read together with other international human rights instruments, may create broader obligations for States parties to both instruments. Article 12 of the International Covenant on Economic, Social and Cultural Rights provides for the right to the highest attainable standard of health for all persons. States parties are therefore obliged to ensure that all persons, irrespective of their migration status, have effective access to at least a minimum level of health care on a non-discriminatory basis. The Committee on Economic, Social and Cultural Rights considers this to encompass primary health care, as well as preventive, curative and palliative health services. The Committee on the Rights of the Child holds that every migrant child is entitled to the same health care as nationals under article 24 of the Convention on the Rights of the Child. To that effect, States parties shall ensure, inter alia, that all migrant workers and members of their families have access to essential medicines and that migrant children are provided with immunization against the major infectious diseases. They shall ensure that migrant women have access to appropriate prenatal and postnatal health care, safe reproductive health services, and to emergency obstetric care.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Health
- Movement
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 71
- Paragraph text
- The Committee considers that in cases of extreme poverty and vulnerability, States parties should provide emergency social assistance to migrant workers in an irregular situation and members of their families, including emergency services for persons with disabilities, for as long as they might require it. It recalls that even if many migrant workers in an irregular situation do not participate in contributory schemes, they contribute to financing social protection schemes and programmes by paying indirect taxes.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Humanitarian
- Movement
- Poverty
- Person(s) affected
- Families
- Persons on the move
- Persons with disabilities
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 70
- Paragraph text
- The reference to "contributions" in article 27, paragraph 2, does not imply that "social security," under article 27, paragraph 1, refers only to contributory social security schemes. Such a narrow reading would be contrary to article 9 of the International Covenant on Economic, Social and Cultural Rights, which recognizes "social security" as "including social insurance." Recalling that article 9 of the Covenant applies to all migrant workers, regardless of their legal status and documentation, the Committee considers that "social security" in article 27 of the Convention also covers existing non-contributory social benefits, and that migrant workers in an irregular situation shall have access to such benefits on a non-discriminatory basis, to the extent that the applicable legislation of the State party concerned provides for such an entitlement.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Social & Cultural Rights
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 69
- Paragraph text
- Article 27, paragraph 2, states that where the applicable legislation does not allow migrant workers and members of their families a benefit, the State party concerned shall examine the possibility of reimbursing them the amount of contributions made by them with respect to that benefit on the basis of equality of treatment with nationals. In this respect, States parties shall provide objective reasons in each case in which the reimbursement of the said contributions is deemed impossible. A decision not to reimburse contributions made by a migrant worker or family member must not discriminate on the basis of his or her nationality or migration status. Furthermore, the Committee considers that a migrant worker's entitlement to social security benefits should not be affected by a change in workplace.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 68
- Paragraph text
- Article 27, paragraph 1, provides that migrant workers' right to social security is subject to the applicable bilateral and multilateral treaties and that the competent authorities of the State of origin and the State of employment can at any time establish the necessary arrangements to determine the modalities of the application of this benefit. As recommended in the ILO Multilateral Framework on Labour Migration, States parties should consider entering into bilateral, regional or multilateral agreements to provide social security coverage and benefits, as well as portability of social security entitlements, to migrant workers, including, as appropriate, to those in an irregular situation. However, article 27, paragraph 1, cannot be interpreted as depriving migrant workers of benefits to which they would otherwise be entitled under the applicable legislation of the State of employment, merely because that State has not signed a reciprocity agreement with their State of origin.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 67
- Paragraph text
- With respect to social security, article 27, paragraph 1, of the Convention provides that all migrant workers and members of their families shall have the right to the same treatment granted to nationals of the State of employment, insofar as they fulfil the requirements provided for by the applicable legislation of that State and the applicable bilateral and multilateral treaties. When a State party enacts legislation providing for the payment of a social benefit, whether conditional or not on the prior payment of contributions, and if the migrant worker concerned fulfils the requirements provided for in such legislation, it cannot arbitrarily exclude him or her from that benefit or limit his or her access to such benefit, as the prohibition of discrimination applies to the right to social security. Accordingly, any distinction based on nationality or migration status must be prescribed by law, pursue a legitimate aim under the Convention, be necessary in the specific circumstances, and be proportionate to the legitimate aim pursued. While States parties enjoy a certain margin of discretion in assessing whether and to what extent differences in otherwise similar situations justify different treatment, they must explain how such different treatment, based exclusively on nationality or migration status, is compatible with articles 7 and 27.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 66
- Paragraph text
- With regard to article 26, paragraph 2, the Committee notes that similar limitations can be found in article 8, paragraph 1(a), of the International Covenant on Economic, Social and Cultural Rights and in article 22, paragraph 2, of the International Covenant on Civil and Political Rights. It refers to the jurisprudence of the relevant treaty bodies for the purposes of interpreting what constitute permissible restrictions under article 26, paragraph 2, of the Convention.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 65
- Paragraph text
- The right to organize and to engage in collective bargaining is essential for migrant workers to express their needs and defend their rights, in particular through trade unions. Article 26 of the Convention sets out the right of all migrant workers to join trade unions and other associations protecting their interests. Article 26 does not provide for protection of the right to form trade unions. This provision, however, read together with other international human rights instruments, may create broader obligations for States parties to both instruments. For example, article 2 of ILO Convention No. 87 (1948) concerning Freedom of Association and Protection of the Rights to Organise, and article 22, paragraph 1, of the International Covenant on Civil and Political Rights, both apply to migrant workers in an irregular situation. Article 26 also protects their right to participate in meetings and activities, and to seek the assistance, of trade unions and any other associations established in accordance with law. States parties shall ensure these rights, including the right to collective bargaining, encourage self-organization among migrant workers, irrespective of their migration status, and provide them with information about relevant associations that can provide assistance.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 64
- Paragraph text
- Article 25 provides for equality in treatment regarding remuneration and other conditions of work between nationals and migrants and also guarantees this right in private employment contracts, notwithstanding the status of the migrant worker. Article 25, paragraph 3, states that employers shall not be relieved of any legal or contractual obligations, nor shall their obligations be limited in any manner by reason of any irregularity in the stay or employment of migrant workers. States parties shall provide for appropriate sanctions for employers who derogate from the principle of equality of treatment in private employment contracts with migrant workers in an irregular situation, and ensure that those migrant workers have access to labour courts or other judicial remedies when their rights are violated and without fear of being deported (art. 83). To give effect to this provision, the Committee is of the view that States parties shall also put in place an effective monitoring system for workplaces, especially in industries known to be employing migrant workers in an irregular situation.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 63
- Paragraph text
- States parties should require employers to explicitly state in contracts that are free, fair and fully consented to, the terms of employment for migrant workers, including those in an irregular situation, in a language they understand, outlining their specific duties, hours of work, remuneration, days of rest and other conditions of work. They should take effective measures against non-payment of wages, delay in payment until departure, transfer of wages into accounts that are inaccessible to migrant workers, or payment of lower wages to migrant workers, especially those in an irregular situation, than to nationals. States parties should also step up inspections of places where migrant workers are routinely employed and instruct labour inspectorates not to share data concerning the migration status of migrant workers with immigration authorities, as their primary duty is to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work, in accordance with article 3, paragraph 1 (a), of ILO Convention No. 81 (1947) concerning Labour Inspection in Industry and Commerce.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 62
- Paragraph text
- Article 25, paragraph 1, provides for migrant workers, irrespective of their status, to enjoy equal treatment to that of nationals in respect of remuneration, other conditions of work and terms of employment. While States parties may refuse migrant workers who do not have work permits access to their labour markets, once an employment relationship has been initiated and until it is terminated, all migrant workers, including those in an irregular situation, are entitled to equal conditions of work and terms of employment. The conditions of work and terms of employment listed in article 25, paragraph 1(a) and (b), are non-exhaustive examples. The equal treatment principle also covers any other matter that, according to national law and practice, is considered a working condition or term of employment, such as maternity protection.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Equality & Inclusion
- Movement
- Person(s) affected
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 61
- Paragraph text
- Article 25, paragraph 1 (b), of the Convention provides that laws and regulations on the minimum age of employment shall equally apply to migrant children. The minimum age shall not be less than 15 years, in accordance with article 2 of ILO Convention No. 138 (1973) concerning Minimum Age for Admission to Employment. Furthermore, in accordance with article 11 of the Convention, States parties are obliged to ensure that child migrant workers shall be protected from any form of slavery, prostitution or work that would jeopardize their education, safety, morals and health, such as long hours of work. States parties must protect child migrant workers from violence and ensure their rights to education, leisure and occupational health.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Health
- Movement
- Person(s) affected
- Children
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 60
- Paragraph text
- Article 11 of the Convention requires States parties to take effective measures against all forms of forced or compulsory labour by migrant workers. This includes debt bondage, passport retention, and illegal confinement, for example. Article 21 obliges States parties to ensure that employers and recruiters do not confiscate or destroy travel or identity documents belonging to migrant workers. States parties should provide training to law enforcement officers, and ensure that occupations dominated by migrant workers, especially women migrant workers, such as domestic work and some forms of entertainment, are protected by labour laws and subject to inspections.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Persons on the move
- Women
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 59
- Paragraph text
- Article 23 of the Convention provides for migrant workers and members of their families subject to an expulsion decision to be informed without delay of their right, and to have recourse to the protection and assistance of the consular or diplomatic authorities of their State of origin. It also requires the authorities of the expelling State to facilitate the exercise of this right. Accordingly, the expelling State shall inform the person concerned without delay of this right, that is, at the time of or shortly after notifying the person of the expulsion decision and preferably in a language he or she understands. It shall facilitate any communication between the person concerned and the consular or diplomatic authorities of the State of origin.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 58
- Paragraph text
- Article 22, paragraph 9, complements article 22, paragraph 6, and article 25, paragraph 3, stating that migrant workers and family members should not be deprived of their acquired rights, such as the right to receive wages and "other entitlements," including social security benefits or reimbursement of contributions made with respect to such benefits. States parties should therefore ensure that migrant workers and members of their families have access to information on the amount of their accrued social security benefits prior to their expulsion.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 57
- Paragraph text
- Article 22, paragraph 8, provides that migrant workers and members of their families shall be exempt from bearing the costs of their expulsion. The expelling State may require that they pay their own travel costs, but migrant workers must not be required to pay the costs of the legal proceedings leading to their expulsion or the costs of their administrative detention (see also art. 17, para. 8). However, the Committee notes that migrant workers who are in an irregular situation not of their own making, for example, redundancy before expiry of a contract or where an employer failed to complete the necessary formalities, should not be responsible for the costs of expulsion, including travel costs.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 56
- Paragraph text
- Article 22, paragraph 7, provides for migrant workers and members of their families who are subject to an expulsion decision to seek entry into a State other than their State of origin, without prejudice to the execution of the expulsion decision. The exercise of this choice on the part of the migrant worker and family members is subject to the consent of the third State.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 55
- Paragraph text
- Article 22, paragraph 6, provides for the person concerned by an expulsion decision to have a reasonable opportunity before or after departure to settle any claims for wages and other entitlements due to him or her and any pending liabilities. This provision echoes article 9, paragraph 1, of ILO Convention No. 143 (1975) concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers (Supplementary Provisions). The opportunity to settle claims, wages and other benefits must be effective in practice. Migrant workers often encounter problems pursuing legal claims in the State of employment once they have returned to their State of origin, including high litigation costs or difficulties providing evidence. Therefore, States parties should, whenever possible, grant migrant workers and their family members a reasonable period of time prior to their expulsion to claim wages and benefits. States parties should also consider time-bound or expedited legal proceedings to address such claims by migrant workers. In addition, States parties should conclude bilateral agreements so that migrant workers who return to their State of origin may have access to justice in the State of employment to file complaints about abuse and to claim unpaid wages and benefits.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Economic Rights
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 54
- Paragraph text
- Article 22, paragraph 5, states that if an expulsion decision that has already been executed is subsequently annulled, the person concerned has the right to seek compensation according to law. The expelling State shall ensure that the expelled person has the necessary facilities to pursue his or her compensation claim from abroad, for example, by appointing a legal representative. Furthermore, the expelling State may not invoke the earlier (annulled) decision to deny the person concerned re-entry into its territory.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 53
- Paragraph text
- The right of a person to submit the reason he or she should not be expelled and to have his or her case reviewed by the competent authority (art. 22, para. 4), includes the right to seek a stay of the decision of expulsion pending review of the said decision. While a stay of decision does not regularize the status of the person concerned for the time of the proceedings, it prevents the State party from expelling him or her before a final decision is rendered. In accordance with article 83 of the Convention, States parties are obliged to provide an effective remedy, including the right to review by a competent authority for migrant workers and their family members, whose rights and freedoms as recognized in the Convention have been violated. The Committee notes that migrant workers and members of their families must be given adequate time and facilities to pursue such a remedy against expulsion so as to ensure the effectiveness of their right to review. Such facilities should include the right to legal assistance and the assistance of an interpreter, if necessary, and be free of charge, if the circumstances of the case so require. The competent authority reviewing the decision of expulsion should ideally be a court. The right to appeal expulsion under article 22, paragraph 4, of the Convention may only be restricted for "compelling reasons of national security".
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 52
- Paragraph text
- Article 22, paragraph 2, seeks to prevent arbitrary expulsions by allowing only those carried out "in pursuance of a decision taken by the competent authority in accordance with law." Article 22, paragraph 3, provides for the decision on expulsion to be communicated to the migrant worker concerned in a language he or she understands and, upon his or her request where not otherwise mandatory, in writing and with reasons, save in exceptional circumstances on grounds of national security. These rights are important to ensure due process, by enabling migrant workers to prepare their arguments with regard to such a decision. The right of the persons concerned to be informed of these rights before, or, at the latest, at the time the decision is rendered, serves the same purpose.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 51
- Paragraph text
- Article 22, paragraph 1, of the Convention explicitly prohibits collective expulsion and requires that each case of expulsion be examined and decided individually. States parties have an obligation to ensure that their expulsion procedures provide sufficient guarantees to ensure that the personal circumstances of each migrant worker are genuinely and individually taken into account. This obligation extends to all spaces over which a State party exercises effective control, which may include vessels on the high seas.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph
Rights of migrant workers in an irregular situation and members of their families 2013, para. 50
- Paragraph text
- The principle of non-refoulement, as contained in international and regional human rights and refugee law, is the prohibition on forcibly removing anyone, in any manner whatsoever, to a country or territory where they would be at real risk of persecution or serious human rights violations or abuses. In the view of the Committee, this principle covers the risk of torture and cruel, inhuman or degrading treatment or punishment, including inhumane and degrading conditions of detention for migrants or lack of necessary medical treatment in the country of return, as well as the risk to the right to life (arts. 9 and 10 of the Convention). It also applies to situations where individuals would not be protected from onward refoulement. The Committee is of the view that migrants and members of their families should be protected in cases where expulsions would constitute arbitrary interference with the right to family and private life. Migrants and members of their families in an irregular situation with international protection needs should also be protected against expulsion.
- Body
- Committee on Migrant Workers
- Document type
- General Comment / Recommendation
- Topic(s)
- Governance & Rule of Law
- Movement
- Person(s) affected
- Families
- Persons on the move
- Year
- 2013
Paragraph