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Home  >  Migration  >  Legal recourse

Legal recourse

Art 13 of the European Convention of Human Rights and Fundamental Freedoms states unequivocally the right to an effective remedy for all human beings irrespective of their nationality before a national court, including in those cases when the remedy is sought against the action of a person acting in an official capacity. For instance, as the prohibition of torture is absolute in the Convention, and such prohibition can not be derogated from even in cases of emergency or war, the right to an effective remedy becomes necessarily intertwined with protection from torture and redress.

The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which entered into force in July 2003, includes important provisions on judicial resources and guarantees on detention, trial, abuse of force by security forces in the host country which reflect the specific vulnerability of migrants in host countries.

Art. 18 states the principle of equality of migrants and members of their family before the courts of the host countries without any disadvantage in comparison with nationals of the host country. Art. 24 states the right of migrant workers and their family members to be recognized as persons before the law everywhere and in all situations.

Art.19 includes a provision on special considerations on humanitarian grounds that authorities must take for the situation of migrant workers and their families in case of criminal sentencing off a migrant and/or his/her family members, in particular in relation to their right of residence and /or work so as to avoid serious consequences for their work and residence situation in the host countries.

Art. 20 specifies the prohibition of imprisonment for failure to fulfil a contractual obligation. It is important to note that this article prohibits expulsion or denial/revocation of a migrant and his/her family members’ residence permit for failure to fulfil a contractual obligation. This clause however introduces an exception to this rule as it excludes from its application the situation in which authorization of residence is conditional upon fulfilment of a contract.

Art. 22 of the Convention details procedures and safeguards relating to expulsion, with an absolute prohibition of collective expulsions. Migrants and their families may be expelled only after an individual decision of a competent authority according to the law in force, and have the right to plead their case and have the decision reviewed unless a final decision, according to the law has been taken. Should the review lead to the annulment of an expulsion order, the Convention affirms the right to seek and obtain compensation for damages arising from the expulsion, and the right to re-enter the country where the migrant and/or hi/her family had been expelled from.

Analysis provided by: Antonella C. Attardo PhD (History of Law), Italy.


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