Universal-MigrationHRlaw-PG-no-6-Publications-PractitionersGuide-2014-eng

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 147
be secured in the domestic legal order”. 481 International human rights
bodies agree that the remedy must be prompt, effective, accessible,
impartial and independent, must be enforceable, and lead to cessation
of or reparation for the human rights violation concerned. 482 In certain
cases, the remedy must be provided by a judicial body, 483 but, even if
it is not, it must fulfil the requirements of effectiveness and independence,
set out above. The remedy must be effective in practice as well
as in law, and must not be unjustifiably hindered by the acts of State
authorities. 484
The right to a remedy has procedural implications for the expulsion
process—addressed in the next Chapter. In addition, however, where
a migrant, who is alleged to have suffered human rights violations in
the country in which he or she is resident as a non-national, is to be
expelled, such expulsion or the threat of it may hinder his or her access
to a remedy for that human rights violation. A migrant might, for example,
have been subject to violations of his or her labour rights, right to
education or other economic, social or cultural rights. They might have
been subject to ill-treatment, forced labour or situations of arbitrary
deprivation of liberty, as may be the case for example for domestic
workers. 485 The Inter-American Court of Human Rights has stressed the
importance of the right to a remedy for undocumented migrant workers,
noting that it is impermissible to take measures “denying them the
possibility of filing a complaint about violations of their rights before the
competent authority.” 486
The ICRMW establishes a general principle that “expulsion from the
State of employment shall not in itself prejudice any rights of a migrant
worker or a member of his or her family acquired in accordance with
the law of that State, including the right to receive wages and other
entitlements due to him or her”. 487 However, such provision is limited to
migrant workers and members of the family and, moreover, speaks only
of rights “acquired under the law of the State”, narrowing the scope of
the protection. The Committee on Migrant Workers has held that, where
a migrant worker is to be expelled, “States parties should, whenever
481 Al-Nashif v. Bulgaria, ECtHR, Application No. 50963/99, Judgment of 20 June 2002, para. 132.
See also, Omkarananada and the Divine Light Zentrum v. Switzerland, ECommHR, op. cit.,
fn. 474, p. 118, para. 9.
482 See, generally, ICJ, Practitioners’ Guide No. 2, op. cit., fn. 480, pp. 46–54.
483 Ibid., pp. 49–54.
484 Muminov v. Russia, ECtHR, op. cit., fn. 343, para. 100; Isakov v. Russia, ECtHR, op. cit.,
fn. 324, para. 136; Yuldashev v. Russia, ECtHR, op. cit., fn. 324, paras. 110–111; Garayev v.
Azerbaijan, ECtHR, Application No. 53688/08, Judgment of 10 June 2010, paras. 82 and 84.
485 See, General Comment No. 1 on migrant domestic workers, CMW, UN Doc. CMW/C/GC/1,
23 February 2011, para. 17.
486 Advisory Opinion on Undocumented Migrants, IACtHR, op. cit., fn. 33, para. 170.
487 Article 22.9 ICRMW. See, on labour rights, Article 25.3 ICRMW.