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

MIGRATION AND INTERNATIONAL HUMAN RIGHTS LAW | 155
c) The right to representation
The right to representation before the authority competent to decide
on the expulsion is specifically guaranteed under Article 13 ICCPR and
Article 1.1(c) of Protocol 7 ECHR.
The Human Rights Committee has recommended that, in accordance
with Article 13 ICCPR, States should grant “free legal assistance to
asylum-seekers during all asylum procedures, whether ordinary or extraordinary”.
516 It has also affirmed that States should “ensure that all
asylum-seekers have access to counsel, legal aid and an interpreter”. 517
The European Court of Human Rights found a violation of the procedural
guarantees of Article 1 of Protocol 7 ECHR where “the decision on the
applicant’s exclusion had not been communicated to him for more than
three months and [. . .] he had not been allowed to submit reasons
against his expulsion and to have his case reviewed with the participation
of his counsel”. 518
The Committee of Ministers of the Council of Europe also declared in its
Twenty Guidelines on Forced Return that the time-limits for exercising
a remedy against expulsion must not be unreasonably short, and that
“the remedy shall be accessible, which implies in particular that, where
the subject of the removal order does not have sufficient means to
pay for necessary legal assistance, he/she should be given it free of
charge, in accordance with the relevant national rules regarding legal
aid”. 519 The guidelines are a declaratory instrument of the European
human rights system. However, the Committee of Ministers considered
this particular provision as embodying already existing obligations of
Member States of the Council of Europe. 520
d) Right to appeal
While human rights treaty bodies and the Committee of Ministers of the
Council of Europe have stopped short of recognising the right to a judicial
appeal, they have insisted on guaranteeing the access to an appeal
against expulsion decisions before an independent authority.
The Human Rights Committee, applying Article 13 ICCPR, has found that
“[a]n alien must be given full facilities for pursuing his remedy against
516 Concluding Observations on Switzerland, CCPR, UN Doc. CCPR/C/CHE/CO/3, 29 October
2009, para. 18; Concluding Observations on Ireland, CCPR, UN Doc. CCPR/C/IRL/CO/3,
30 July 2008, para. 19.
517 Concluding Observations on Japan, CCPR, UN Doc. CCPR/C/JPN/CO/5, 18 December 2008,
para. 25.
518 Nolan and K. v. Russia, op. cit., fn. 472, para. 115.
519 Twenty Guidelines on Forced Return, op. cit., fn. 510, Guideline 5.2.
520 Ibid., Preamble 2(a).