A/HRC/27/47
immigrant must be able to apply for a remedy to a judicial authority, which shall decide
promptly on the lawfulness of the measure and, where appropriate, order the release of the
person concerned (E/CN.4/2000/4, principle 8). Detention must be ordered or approved by
a judge or a body affording equivalent guarantees of competence, independence and
impartiality (E/CN.4/1999/63, para. 69). The procedural guarantee of article 9, paragraph 4,
of the International Covenant on Civil and Political Rights requires that migrant detainees
enjoy the right to challenge the legality of their detention before a court. There should be
automatic, regular and judicial, not only administrative, review of detention in each
individual case. Review should extend to the lawfulness of detention and not merely to its
reasonableness or other lower standards of review. A maximum period of detention must be
established by law, and upon expiry of that period, the detainee must be automatically
released (A/HRC/13/30, para. 61). Established time limits for judicial review must be
obtained in “emergency situations” when an exceptionally large number of undocumented
immigrants enter the territory of a State.
41.
The Working Group (A/HRC/13/30/Add.2) and the Committee against Torture
(CAT/C/MRT/CO/1) have called on States parties to provide access to effective judicial
remedies to challenge the legality of administrative decisions on detention.
42.
The Human Rights Committee has reiterated its view that the enjoyment of
Covenant rights is not limited to citizens of States Parties but must also be available to all
individuals, regardless of nationality or statelessness, such as asylum seekers, refugees,
migrant workers and other persons who may find themselves in the territory or subject to
the jurisdiction of the State Party. This is articulated in general comments No. 8 (1982) on
the right to liberty and security of persons, No. 15 (1986) on the position of aliens under the
Covenant, and No. 31 (2004) on the nature of the general legal obligation imposed on
States parties to the Covenant (HRI/GEN/1/Rev.9 (Vol. I) p. 179, paras. 1 and 7; p. 189,
para. 2; and p. 245, para. 10). The Committee affirmed that “every decision to keep a
person in detention should be open to review periodically so that the grounds justifying the
detention can be assessed” (CCPR/C/59/D/560/1993, para. 9.4).
43.
The Special Rapporteur on the human rights of migrants, in his 2012 annual report
on the detention of migrants in an irregular situation (A/HRC/20/24), recalled the statement
of the Working Group on Arbitrary Detention that there should be automatic, regular and
judicial, not only administrative, review of detention in each individual case, and that
review should extend to the lawfulness of detention and not merely to its reasonableness or
other lower standards of review (ibid., para. 23). The Special Rapporteur recommended that
Governments ensure that procedural safeguards and guarantees established by international
human rights law and national law are applied to any form of detention (ibid., para. 72 (a)).
Further, all migrants deprived of their liberty should be informed in a language they
understand, if possible in writing, of the reasons for the detention and be entitled to bring
proceedings before a court, so that the court can decide on the lawfulness of the detention.
Migrants in detention shall be assisted, free of charge, by legal counsel and by an
interpreter during administrative proceedings.
44.
Article 16 of the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families sets out the right to liberty and security of
person for migrant workers and members of their families and the right not to be subjected
individually or collectively to arbitrary arrest or detention (paras. 1 and 4). It articulates that
migrant workers and members of their families who are deprived of their liberty by arrest or
detention are entitled to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of their detention and order their release if the detention is
not lawful (para. 8). In attending such proceedings, they are entitled to have cost-free
assistance to an interpreter if they cannot understand or speak the language used (ibid.).
Where it has been determined that migrant workers and members of their families have
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