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INTERNATIONAL MIGRATION LAW
INFORMATION NOTE
ININTETERNRNATIONATIONAL AL MMIGRAIGRATIONTION L LAWAW UN UNITIT JUNE 2019
IML INFORMATION NOTE ON
ACCESS TO JUSTICE: A MIGRANT’S RIGHT
Introduction .................................................................................................................................................... 2
I. Defining access to justice ......................................................................................................................... 2
II. The right to access justice for migrants — relevance and challenges ........................................................ 3
III. Elements of the right to access justice ..................................................................................................... 4
1. General principles ............................................................................................................................. 4
a. Non-discrimination in the access to justice ........................................................................ 4
b. Equal and effective access to a tribunal ............................................................................. 4
c. Fair proceedings and due process guarantees ................................................................... 5
d. The right to an effective remedy ........................................................................................ 6
2. Access to justice through the migration journey .............................................................................. 7
a. Access to justice at the border and upon entry .................................................................. 7
b. Employment: migrant workers and access to justice ......................................................... 7
i. Structural problems and adverse employers’ practices ....................................... 7
ii. Due process guarantees and mechanisms ........................................................... 8
iii. Due process guarantees when employment contracts are terminated............... 8
iv. Right to wages owed even after returning to State of origin ............................... 8
c. Right to property and access to justice .............................................................................. 9
d. Detention: access to justice for detained migrants and due process guarantees .............. 9
i. Right to be informed of reasons for detention .................................................. 10
ii. Right to litigate and access a lawyer .................................................................. 10
iii. Right to inform family members or others of detention .................................... 10
iv. Right of access to external bodies ...................................................................... 11
v. Right to consular access ..................................................................................... 11
vi. Right to effective judicial review and possible reparation ................................. 11
e. Return of migrants ............................................................................................................ 11
i. Access to justice regarding decision of expulsion .............................................. 11
ii. Access to justice during and after return ........................................................... 13
IV. Access to justice for specific groups ........................................................................................................13
1. Migrant children ............................................................................................................................. 13
a. A child-friendly justice system .......................................................................................... 14
b. Equal access as national children ..................................................................................... 14
c. The right to information, counselling and legal representation ....................................... 14
d. Best interests determination ............................................................................................ 14
2. Migrant women .............................................................................................................................. 15
a. General access to rights ................................................................................................. 15
b. Gender-sensitive access to justice ................................................................................. 15
3. LGBTI migrants ................................................................................................................................ 16
4. Victims of crimes ............................................................................................................................. 16
Conclusion .....................................................................................................................................................17
Endnotes ........................................................................................................................................................18
INTERNATIONAL MIGRATION LAW
A general acceptance of the right to access to justice – albe-
“The most advanced justice system in it under differing terminologies – can be elicited from all
the world is a failure if it does not provide relevant universal, international and regional human rights
justice to the people it is meant to serve. instruments: Article 8 of the 1948 Universal Declara-
9
Access to justice is therefore critical.” tion, Articles 13 and 6(1) of the European Convention on
Human Rights (ECHR)10 and Article 25 of the American Con-
11
Rt. Hon. Beverley McLachlin, P.C., Chief vention, as well as Article 7.1 of the African Charter on
1 12
Justice of Canada Human and Peoples' Rights, Article 47 of the Charter of
Fundamental Rights of the European Union13 and Article 9
of the Arab Charter on Human Rights,14 all make direct com-
Introduction mitments to the protection of this right. Similarly, Article 2
of the International Covenant on Civil and Political Rights
15
2 (ICCPR) refers to the right to an effective remedy for all
It is stating the obvious that migrants have rights and that
the rights in the Covenant and for all individuals including
human rights are also migrants’ rights. It is equally a truism
“migrant workers […] and other persons who may find
that there exists nevertheless a dire gap between the rights
themselves in the territory or subject to the jurisdiction of
migrants hold by virtue of law, and their practical imple-
16
the State Party.” Further, Article 14.1 of the ICCPR pro-
mentation. The right to access to justice is therefore critical
vides that “all persons shall be equal before the courts and
in such a context: the more precarious and difficult the situ- tribunals.”
ation of a migrant is, the more crucial it will be for this per-
son to have a meaningful access to ways to claim his or her
The right to an effective remedy for everybody is further-
rights. Access to justice is at the heart of effective protec-
17
more recognized in many national constitutions. For exam-
tion of human rights. It is also fundamental in addressing
impunity, providing remedies and ensuring the rule of law. ple, the access to justice is a constitutional right for all in
the United Kingdom and the Supreme Court eloquently set
out that for the Courts to be able to perform their duties
The purpose of this Information Note is to provide a broad
and roles, such as ensuring that “the executive branch of
overview of the right to access justice and its specific con-
government carries out its functions in accordance with the
tent for migrants, regardless of their legal status, and in
law […] people must in principle have unimpeded access to
light of States’ obligations laid down in international instru-
them. Without such access, laws are liable to become a
ments and relevant jurisprudence. The right will first be dead letter.”
dissected by its general elements, then discussed as applied
to various particular legal categories of migrants, and
Access to justice can also be understood as ensuring that
through the different steps of the migration journey. The
the legal and judicial process and outcomes are themselves
emphasis of the Note is on setting out why equal, effective
18
"just and equitable.” The right is not necessarily fully real-
and meaningful access to justice is particularly critical for
3 ized when only a system securing access to justice is put in
international migrants. The interpretation of justice taken place; instead, what is all-the-more critical is that the indi-
is focussed on the accessibility of rights and the functioning
vidual is enabled to practically access such system, including
of legal mechanisms, as opposed to social justice as a meth-
od of development or reliever of poverty.4 in view of their individual disadvantages and vulnerabilities.
Access to justice is ultimately achieved when the decision
made by the relevant justice institutions is enforced and
I. Defining access to justice implemented. For example, victims of trafficking might have
access to existing mechanisms to initiate a process and seek
remedies, but very frequently these remedies are not deliv-
ered because the victim of trafficking is repatriated and
“Access to justice” typically refers to the ability of persons
there are no predictable and systemic mechanisms for
to make full use of the existing legal processes designed,
transferring remedies between countries.19
formally or informally, to protect their rights in accordance
5
with substantive standards of fairness and justice. This ap-
6
In other words, what counts is that such remedies are effec-
plies to every stage of the “justice chain,” from rights
tive and that they provide fair and impartial justice, without
awareness within civil society, to the conduct of law en-
20
discrimination. Where relevant, for example, adequate
forcement entities, or from having a case heard in a court of
7
information must be provided and financial barriers must
law, to seeking and obtaining an appropriate remedy. In
be neutralized (e.g. prohibitive court fees), while non-
other words, it is the possibility to make use of the process-
discriminatory, free legal assistance needs to be provided
es established to provide redress where rights may have
8
been violated. by the State if indispensable for the effective access to court
2
INFORMATION NOTE ON ACCESS TO JUSTICE: A MIGRANT’S RIGHT
21
of an individual or particular groups of persons. As will be make laws for society in this country. Dem-
mentioned below, this is usually the case for the migrant ocratic procedures exist primarily in order
populations. In the same way, judges, lawyers, and law en- to ensure that the Parliament which makes
forcement personnel all have a critical role to play in ensur- those laws includes Members of Parlia-
ing that migrants have an effective access to justice.22 ment who are chosen by the people of this
country and are accountable to them.
Alternative dispute settlement mechanisms, such as quasi- Courts exist in order to ensure that the
judicial procedures, can also provide access to justice “as laws made by Parliament, and the common
long as their decisions may ultimately be supervised by a law created by the courts themselves, are
judicial body and conform to a general requirement of fair- applied and enforced. That role includes
23
ness.” If not judicial, the competent body needs at least to ensuring that the executive branch of gov-
guarantee a certain quality of decisions. As an example of ernment carries out its functions in accord-
non-judicial body, alternative dispute mechanisms can play ance with the law.
an important role: such alternative dispute mechanisms are
most frequently based on a consensus between stakehold- In order for the courts to perform that role,
ers and it is the community of stakeholders who monitors people must in principle have unimpeded
and ensures compliance. access to them. Without such access, laws
are liable to become a dead letter, the
In essence, States have a legal obligation according to inter- work done by Parliament may be rendered
national law to ensure that all individuals, including mi- nugatory, and the democratic election of
grants and irrespective of their status, are able to access Members of Parliament may become a
competent, impartial judicial and adjudicatory mechanisms meaningless charade. That is why the
equally and without discrimination.24 courts do not merely provide a public ser-
vice like any other.
II. The right to access justice for migrants But the value to society of the right of ac-
— relevance and challenges cess to the courts is not confined to cases
in which the courts decide questions of
general importance. People and businesses
need to know, on the one hand, that they
Migrants in irregular situations usually have no voice in the
25
will be able to enforce their rights if they
public and political fora. Access to justice is all the more
have to do so, and, on the other hand, that
crucial for them because the vast majority do not have the
if they fail to meet their obligations, there
right to vote and thus can only rely on the judiciary to claim
26
is likely to be a remedy against them. It is
their rights. Thus, in addition to being a right in itself,
that knowledge which underpins everyday
meaningful access to justice is also a tool to ensure fulfil-
economic and social relations.28
ment of other rights. Moreover, providing migrants, regard-
less of their status, with a standing in the judicial system
The fundamental importance of access to justice for mi-
reduces risk of impunity for wrongdoings within the society
grants and its positive impact on the society at large has
in general. This contributes not only to migrants’ protection,
also been recognised in the final draft of the Global Com-
but also to strengthening the rule of law, social cohesion
29
27
pact for Migration. States notably committed to “[p]rovide
and stability. As put very eloquently by the UK Supreme
Court: newly arrived migrants with targeted, gender-responsive,
child-sensitive, accessible and comprehensive information
The importance of the rule of law is not and legal guidance on their rights and obligations, including
on […] access to justice to file complaints about rights viola-
always understood. Indications of a lack of
understanding include the assumption tions.”30
Yet, the often precarious access to justice of migrants, par-
that the administration of justice is merely
ticularly those who have no regular status, is due to both
a public service like any other, that courts
31
situational and institutional factors. Mainly, discriminatory
and tribunals are providers of services to
or inadequate social policies (e.g. in the areas of health,
the “users” who appear before them [...].
32
housing, education and social security), laws or decisions
At the heart of the concept of the rule of
may prevent migrants from seeking or obtaining redress in
law is the idea that society is governed by
33
cases of violations of their rights. The effects of several
law. Parliament exists primarily in order to
3
INTERNATIONAL MIGRATION LAW
different grounds for discrimination sometimes combine to pendent and impartial tribunal established by law in the
34
impede access to this right. Limiting factors include insuffi- determination of any criminal charge or of rights and obliga-
41
cient information about legal redress available to migrants; tions in a suit of law.” The CCPR has further established
lack of awareness of equality legislation on the part of judg- aliens’ entitlement to equal protection by the law and the
es and lawyers; lack of protection for complainants and wit- prohibition of discrimination in the application of the rights
42
nesses; and the inadequate application of burden-shifting to which non-citizens are entitled. The Inter-American
provisions, which are particularly important in discrimina- Court of Human Rights has also stated that the right of ac-
35 43
tion cases. Even where the law is not directly discriminato- cess to justice is granted equally to irregular migrants. It
ry, the justice system may be too complex, expensive, un- bears noting in addition that the Durban Declaration and
derresourced, overly centralized, or not appropriately sensi- Programme of Action (DDPA) on non-discrimination calls for
tive to migrants needs, making access to justice only a virtu- the elimination of discrimination in many areas, including
al right as opposed to an effective one. access to justice, and adds, regarding migrants, that States
should promote and fully protect migrants’ human rights
44
and fundamental freedoms without regard to legal status.
III. Elements of the right to access justice
To enable the enjoyment of the right to access to justice
without discrimination, adequate information (outreach)
1. General Principles must be made available to migrants, in a language that they
understand, as well as institutional support (including finan-
In essence, the core elements of the right to access justice cial and legal assistance, when needed). Competent author-
are generally considered to be: 1) the recognition as a per- ities need to be accessible geographically (decentralized).
son before the law; 2) the equality before the courts and Positive obligations of States also include the adoption of
tribunal; 3) the right to a fair trial and due process guaran- non-discriminatory legislation, the removal of any legal,
36
tees and 4) the right to an effective remedy. For remedies social or economic obstacle preventing migrants from the
to be accessible to migrants, these general principles not enjoyment of all elements of the right of access to justice,
only require that States ensure “access to justice and to from the access to a judicial mechanism, through the right
effective remedies through national courts, tribunals and to a fair trial, to the right to an effective remedy, etc.45
dispute-settlement mechanisms, regardless of their immi-
37
gration status” but also that States “ensure that they are
not threatened with or subject to arrest, detention or de- b. Equal and effective access to a tribunal
portation when reporting crimes, labour rights violations,
and other forms of human rights violations.”38 A fundamental pre-requisite for achieving the access to
justice of migrants is the possibility to have a case heard in a
The following sections are an overview of how those ele-
court of law. The ICCPR clearly states that “[e]veryone shall
ments translate for migrants.
have the right to recognition everywhere as a person before
46
the law,” and the ICRMW refers explicitly to the right of
migrant workers and members of their family to
a. Non-discrimination in the access to jus- 47
“recognition everywhere as a person before the law.” The
tice European Court of Human Rights (ECtHR) has held that the
right to a “fair and public hearing,” established by Article 6
The cross-cutting principle of non-discrimination, firmly of the ECHR, not only guarantees the fairness of legal pro-
ceedings already pending, but also includes the “right of
established in international human rights law, requires
access to the courts” (i.e., the right to have one’s claims
States to grant access to justice to all individuals, including
48
brought before a court or tribunal). Furthermore, accord-
migrants, regardless of their race, colour, sex, language,
ing to the ECtHR, the remedy must be accessible in practice;
religion, political or other opinion, national or social origin,
39
for example, there must be effective notification proce-
property, birth or other status. The Human Rights Com-
dures.49
mittee (CCPR) set out clearly that States have the obligation
to guarantee the rights found under the ICCPR without dis-
40
Accordingly, States must ensure that migrants are granted
crimination between citizens and migrants. With regards
50
the right to standing and recognition before the law. This
to access to justice, the CCPR has clarified that “[a]liens
possibility is however often impaired for migrants by several
shall be equal before the courts and tribunals, and shall be
factual and legal obstacles: excessively narrow concepts of
entitled to a fair and public hearing by a competent, inde-
4
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