A/HRC/7/12
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the protection of migrant workers’ rights and on the link between migration and human
rights; it provides very useful guidance for States on how to ensure that migration takes
place in humane and equitable conditions. In particular, States should review their
expulsion procedures and harmonize them with the Convention, which offers the most
comprehensive protection for non-nationals in this regard.
63. States should review their national policies to harmonize them with existing regional
and subregional agreements on labour mobility. This should be done with a view to
evaluating which national policies are restrictive in this sense, and what practical
implications restrictive national frameworks have for the human rights of migrants, both
documented and not, as well as for the obstacles it places on promoting the free movement
of labour which might have positive consequences for the national economy.
64. All cases of persons involved in the interception of migrants at sea, whether irregular
migrants or those involved in the rescue or transport of migrants found to be irregular,
should be treated on an individual basis and granted the basic right to due process. Persons
believed to be smuggled or trafficked should be brought before an independent judge
without the involvement of the country of origin; States should renew their cooperation in
protecting witnesses and victims who assist in identification and prosecution of smugglers
and traffickers. Persons claiming international protection should be allowed to enter the
national asylum procedure without delay.
65. States should take measures to review their national laws applicable to the detention
of migrants to ensure that they are harmonized with international human rights norms
that prohibit inhumane treatment and ensure due process. States should take measures to
ensure that detention of irregular migrants is not arbitrary and that there is a national
legal framework to govern detention procedures and conditions. States should develop and
implement systems of alternatives to detention in the context of flows of undocumented
migration - which could provide strong procedural safeguards including the obligation to
have a judge decide on the legality of detention and on the continuing existence of reasons
for detention - and generally permit detention only as a last resort.
Building national capacities
66. States should further develop and implement training and awareness-raising
programmes for border authorities, officials at detention centres, police and military
officers, and government officials on the human rights afforded to irregular migrants
during all phases of the migration stage including, inter alia, interception and rescue at sea,
detention and expulsion, and smuggling and trafficking, where applicable.
67. States should consider establishing an independent body at the regional level that can
help monitor the effectiveness of certain policies contributing to the externalization of
border controls. This might be in the form of enhancing the capacity of an already existing
academic or policy institute or by forming stronger ties with the data and monitoring
sections of existing regional systems of human rights protection (e.g. the Inter-American
System for Human Rights, the Council of Europe, or the African Commission on Human
and Peoples’ Rights), where applicable.
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