Written Submission of the International Commission of Jurists

Transcription

1 Written Submissin f the Internatinal Cmmissin f Jurists First infrmal thematic sessin Human rights f all migrants in the prcess fr a Glbal Cmpact fr safe, rderly and regular migratin THE ROLE OF JUDGES AND LAWYERS IN RELATION TO REFUGEES AND MIGRANTS 8-9 May 2017 The Internatinal Cmmissin f Jurists (ICJ) is an internatinal nn-gvernmental rganisatin f judges and lawyers, in ECOSOC cnsultative status since The ICJ has extensive glbal experience in the legal prtectin and enfrcement f human rights, the independence f judges and lawyers, and the rule f law. Access t independent, impartial and judicial institutins and justice, and independent and cmpentent legal assistance, are essential t the prtectin f human rights f all persns, including migrants. The ICJ submits that the Glbal Cmpact shuld affirm the imprtance f such access. T this end, the ICJ is pleased t submit fr cnsideratin in cnnectin with the thematic cnsultatin and verall Glbal Cmpact prcess, the attached set f Principles n the Rle f Judges and Lawyers in Relatin t Refugees and Migrants. These were develped in cnsultatin with judges, lawyers, and ther legal practitiners with expertise n legal prtectin f refugees and migrants, at the natinal, reginal, and internatinal level. Amng the issues cvered by the Principles are: general principles n human rights f refugees and migrants and the rle f judges and lawyers; determinatins f entitlement t internatinal prtectin; deprivatin f liberty; remvals; effective remedy and access t justice; independence, impartiality, and equality befre the law; cnflicts between natinal and internatinal law. Additinal infrmatin is available n the ICJ website at: r by cntacting ICJ Senir Legal Adviser, Matt Pllard (matt.pllard@icj.rg).

2 Principles n the rle f judges and lawyers in relatin t refugees and migrants 5 May 2017 BACKGROUND TO THE PRINCIPLES These Principles were develped by the Internatinal Cmmissin f Jurists (ICJ) based n cnsultatins, including the 2016 ICJ Geneva Frum f Judges and Lawyers and at the March 2016 sessin f the UN Human Rights Cuncil, as well as the ICJ s glbal research, experience and expertise. A draft f the Principles (withut the cmmentary) was made available t the public and circulated t stakehlders fr cmment. While the ICJ aims fr the Principles t reflect the bradest level f supprt amng thse cnsulted, they d nt necessarily reflect the views f every individual participant in the cnsultatins. The Principles primarily address the rle f judges and lawyers, including prsecutrs and gvernment lawyers. Hwever, the ICJ urges all legislatrs, executive fficials, and all ther persns exercising legal r de fact authrity (whether as a public fficial r under a delegatin f state authrity r by cntract), als t implement, uphld and respect the rle f judges and lawyers in prtecting the rights f refugees and migrants, including as set ut belw. The Principles shuld be further secured by a brader framewrk f laws, plicies, and practices that guarantee and implement human rights and the rule f law within States and at the reginal and internatinal level. In these Principles the term refugees and migrants is t be given a brad interpretatin and taken as a whle. It includes, withut limitatin, asylum seekers, stateless persns, victims f human trafficking, unaccmpanied r separated children, and ther persns in the cntext f migratin. It applies irrespective f whether a persn s entry, presence r stay is cnsidered by natinal law t be regular r irregular. The Principles are intended t cmplement and prvide guidance fr the implementatin f existing internatinal instruments relevant t prtectin f refugees and migrants, including withut limitatin: the Universal Declaratin f Human Rights; the Cnventin relating t the Status f Refugees and its Prtcl; the Internatinal Cvenant n Civil and Plitical Rights and Internatinal Cvenant n Ecnmic, Scial and Cultural Rights; the Internatinal Cnventin n the Prtectin f the Rights f All Migrant Wrkers and Members f Their Families; and the New Yrk Declaratin fr Refugees and Migrants; as well as relevant reginal treaties and standards.

3 GENERAL PRINCIPLES 1. Every State must respect, prtect and fulfil the human rights f every persn n its territry r therwise within its jurisdictin, withut discriminatin. All refugees and migrants are entitled t the full range f internatinally-recgnized human rights, excepting any particular rights that internatinal law explicitly recgnizes nly in relatin t citizens r natinals. Cmmentary: Under internatinal human rights law, the bligatins f States twards individuals d nt depend n the particular status r recgnitin f status f such persns under dmestic r internatinal law, except fr a limited number f prvisins explicitly applicable t special categries. Fr instance, all the rights recgnized by the Internatinal Cvenant n Civil and Plitical Rights (ICCPR) apply t everyne, with the sle exceptin f the rights under Article 25 (participatin in public life, vting and electin, access t serve in the public service), which the ICCPR expressly guarantees nly t citizens. The questin whether a persn is within the jurisdictin f a State while utside that State s rdinary territry falls t be determined by general internatinal law as well as any specific treaty prvisins by which a State is bund. Fr instance, a persn n a vessel under the State s jurisdictin, including when the vessel is in internatinal waters (r anther State s territrial waters), is within the jurisdictin f the vessel s State. 2. Judges and lawyers have a particularly imprtant rle t play in ensuring that all persns, including refugees and migrants, are treated as equal befre the law and receive equal prtectin f the law withut discriminatin. Cmmentary: Prhibited grunds f discriminatin include, withut limitatin, race, clur, sex, language, religin, plitical r ther pinin, natinal r scial rigin, prperty, birth r ther status. See fr example article 2 f the Universal Declaratin f Human Rights (UDHR), and articles 2(1) and 26 f the ICCPR as interpreted and applied by the Human Rights Cmmittee. The rle f an independent judiciary and legal prfessin in the effective prtectin f human rights and maintenance f the rule f law, withut discriminatin, has mre generally been recgnized in, fr instance, the UN Basic Principles n the Independence f the Judiciary, the UN Basic Principles n the Rle f Lawyers, and the UN Guidelines n the Rle f Prsecutrs. 2

4 3. Refugees and migrants are entitled t a fair and effective prcess fr determinatin f their status, under cnditins that preserve human dignity, human rights, and the rule f law. This includes the right t an individual examinatin, and the right t an effective legal remedy, including the right t appeal t a separate, cmpetent and independent judicial authrity. Cmmentary: In these Principles, determinatin f status includes determinatins f refugee status r ther entitlement t internatinal prtectin, as well as determinatins f statelessness. See als cmmentary t Principle 5. Judges and lawyers must apprach all claims in a manner that respects each claimant s persnal dignity and recgnizes the seriusness f the task being undertaken. In interpreting legal prvisins, judges shuld wherever pssible give generus interpretatin t thse prvisins that are prtective f human rights, and strict interpretatin t thse that limit rights. In cases where several interpretatins r prvisins are available and equally applicable, judges shuld apply thse that ffer the mst prtectin fr refugees and migrants. Judges and lawyers must ensure that fair and legal prcess is respected in any prceeding r ther prcedure that culd affect the rights r status f a refugee r migrant. Judges shuld nt reject any individual s claim based slely n the fact that the individual shares a cmmn characteristic with members f a grup, e.g., ethnicity, natinality, r plitical pinin. Hwever, judges may make decisins granting prtectin based n membership f a specific grup. Judges and lawyers active in prceedings relating t status determinatin, remvals, detentin r ther aspects relevant t the situatin f refugees and migrants, shuld have adequate knwledge f refugee, human rights, and humanitarian prtectin law and practice, and be familiar with the use f interpreters and crss-cultural interviewing techniques. Judges and lawyers shuld be sensitive t the circumstances f affected individuals, their particular needs, and the risks t which remval frm the state jurisdictin may expse them. At all times the cnfidentiality f a status determinatin applicatin shuld be respected; in any judicial review r appeal the identity f the persn shuld be prtected frm disclsure. Judges shuld practively seek t apply any accelerated prcedures that allw fr swift psitive decisins, particularly in cases that are prima facie well-funded. Cnversely, hwever, accelerated prcedures shuld nt be applied in any case where the acceleratin culd lead t rejectin f a well-funded claim. In additin t its essential rle in safeguarding human rights and the rule f law, invlvement f the judiciary in asylum prcedures imprves cnsistency f decisin-making, brings greater certainty t the legal framewrk thrugh interpreting and applying legal definitins and prvisins, and helps t establish and maintain prcedural fairness. The requirement fr an individual assessment f the situatin f each persn, capable f determining whether the invluntary transfer f that persn will vilate the State s internatinal bligatins, is in line with 3

5 the prhibitin f cllective expulsins, and the right t an effective remedy fr vilatins f the refulement prhibitin under internatinal law. In sme circumstances, persns wh arrive at but have nt yet crssed a brder may be entitled t prtectin against refulement under internatinal law, and the refusal t admit the persn nt the State s territry may itself vilate the State s internatinal bligatins. Persns whse rights have been vilated in this manner shuld, like thers, have access t an effective remedy as cntemplated by Principle 10. In relatin t appeals, see als Principle 5 regarding status determinatins. 4. The bligatins f States t respect, prtect and fulfil the human rights f migrants and refugees apply regardless f whether the individuals cncerned are part f a large mvement. The existence f a large mvement des nt justify limiting r circumventing the essential rle f judges and lawyers in uphlding the human rights f migrants and refugee and the rule f law. Cmmentary: Whether a mvement is cnsidered t be large depends n the rate f arrival, the gegraphical cntext, the capacity f the receiving State t respnd, and the impact n the receiving State caused by the sudden r prlnged nature f the mvement, rather than n the abslute number f peple mving. Such mvements ften invlve a mixed flw f refugees and migrants. Principle 4 des nt preclude States frm develping prcedures designed t address the practical challenges f large mvements, such as prima facie recgnitin, r instituting mbile facilities fr hearing and adjudicating claims. Any such measures must nt, hwever, have the purpse r effect f limiting the individuals rights r diminishing the State s respect fr thse rights, r therwise reducing the quality and fairness f decisin-making. Fr instance, if, in the cntext f a large mvement, timely individual status determinatins prve impractical, impssible, r unnecessary, authrities may use grup determinatin prcedures pursuant t which all individuals wh meet certain criteria are prima facie regarded as refugees withut detailed individualized assessment. Judges shuld similarly apply any presumptins f inclusin available under natinal law. On the ther hand, even in the cntext f large mvements, n decisin that wuld adversely affect the individual shuld be taken withut a detailed, individualized assessment with due prcedural safeguards. Any executive, legislative, r administrative measures adpted t address large mvements must be subject t substantive judicial review capable f ensuring the cnfrmity f such measures with the rule f law, human rights, fundamental fairness, and prcedural guarantees. Large mvements f refugees and migrants d nt generally, in themselves, cnstitute grunds fr States t invke prvisins in 4

6 internatinal human rights instruments allwing fr dergatin frm rights in situatins f exceptin. In their applicatin t refugees and migrants (as fr thers), including in the cntext f large mvements, any measures f dergatin adpted fr any reasn must fully cmply with the requirements f internatinal human rights law. These include nn-discriminatin, demnstrable necessity, prprtinality, and time-limitedness. Measures must be limited t the extent strictly required by the particular situatin, including as regards their duratin, gegraphical cverage and material scpe. Measures must nt adversely impact thse rights recgnized as nn-dergable by treaties, r as peremptry nrms f custmary internatinal law. Further, article 4(1) f the ICCPR fr instance explicitly prhibits dergatins that wuld be incnsistent with the State s ther bligatins under internatinal law; this wuld include, fr instance, internatinal humanitarian law and internatinal refugee law. 5

7 DETERMINATIONS OF ENTITLEMENT TO INTERNATIONAL PROTECTION 5. Determinatin f a persn s entitlement t internatinal prtectin must guarantee and respect safeguards f prcedural fairness and be subject t an effective appeal befre, r ther substantive review by, a cmpetent, independent and impartial judicial authrity. Cmmentary: Internatinal prtectin thrughut these Principles includes prtectin based n refugee r statelessness status, subsidiary, cmplementary, temprary prtectin r stay arrangements, r ther humanitarian status, and any additinal frms f prtectin therwise based n internatinal human rights law. Principle 5 des nt preclude a State frm entrusting the initial determinatin f entitlement t internatinal prtectin t a judicial, rather than administrative, authrity. If a State decides t structure its system in this way, that judicial authrity must itself meet internatinal standards f cmpetence, independence and impartiality f the judiciary. Judges and lawyers shuld ensure that, thrughut the status determinatin prcess, including at any appeal r review, the necessary prcedural safeguards are respected t ensure a fair and thrugh examinatin f each individual case. Prcedural safeguards must nt be denied summarily r therwise n the grunds that a prima facie risk f harm has nt been made ut. Imprtant prcedural safeguards include, withut limitatin:! Access t the prcedure must be effective in practice. Fr example, fees may nt be impsed n thse unable t pay. Time limits must be reasnable and subject t extensin in apprpriate cases. Access t the prcedure shuld nt be cnditinal n submissin f dcumentatin, such as fficial identity dcuments, in respect f which there may be a reasnable explanatin fr their absence.! Persns must frm the utset be infrmed f the nature and stages f the prcess, as well as abut their rights.! Persns shuld have access t legal advice and representatin, as further elabrated under Principle 7.! Persns and their lawyer must be given due ntice f prcedural steps and hearings.! Persns and their lawyer must have sufficient time t gather, present and evaluate relevant evidence: They must be infrmed f, and given reasnable pprtunity t cnsider and respnd t, the evidence t be used in the prcedure, as well as access mre generally t relevant infrmatin within the pssessin f the authrities. They must have the pprtunity t present evidence, including particularly abut the persn s individual circumstances, cuntry f rigin, and t refute r mitigate any grunds fr exclusin, and t make submissins n the merits as well as any prcedural questins. 6

8 Gvernment authrities and lawyers have a duty t present evidence in their pssessin that wuld be relevant t assessing the truth, particularly when it is t the benefit f the persn. The judge r ther decisin-maker has a duty, shared with lawyers representing the gvernment and the persn, t practively inquire in search f the truth abut the entitlement f the persn t internatinal prtectin. In relatin t evidentiary gaps, the persn shuld be given the benefit f the dubt where necessary and apprpriate.! The persn must receive a face-t-face interview r hearing, in a reasnably cnducive envirnment and accmpanied by their lawyer, befre the persn wh will decide n their entitlement t internatinal prtectin. At the interview r hearing the persn must be able t enter int the substance f their claim and persnal circumstances.! Where necessary, cmpetent and qualified interpretatin and translatin services must be made available, including withut charge if the persn cannt pay, befre any decisin capable f adversely affecting the individual is taken.! Prcedures shuld be adapted in light f any vulnerabilities r risk factrs in the case, such as fr example fr survivrs f trture, victims f trafficking, survivrs f gender-based vilence, children, and disabled persns.! Persns and their lawyers shuld in all cases be prvided in timely fashin with a written reasned decisin. Any decisin adversely affecting the individual cncerned, including in particular if the claim is rejected r declared inadmissible, shuld cntain bth the factual and legal reasning n which it is based.! Persns shuld have an effective right t appeal against any determinatin that the persn is nt entitled t internatinal prtectin, whether arising frm rdinary r accelerated prcedures. (See als Principle 6).! A negative decisin shuld be accmpanied by ntificatin f the right t appeal and a detailed explanatin f the appeal prcedure, including and any applicable time limits (which must be f reasnable length and subject t extensin in apprpriate cases). 7

9 6. On appeal r review, curts must nt be limited t assessing nly whether the apprpriate prcedures were legally fllwed. The judge must be enabled t examine fully the merits f the case, including the determinatin f status, and t make any rder the judge deems necessary t ensure internatinal prtectin f an individual entitled t it, r t therwise remedy aspects f the decisin fund t have been made in errr. Cmmentary: Appeals prceedings shuld guarantee rigrus scrutiny f bth the facts and the law, including as regards the merits f the persn s claim t internatinal prtectin, based n up-t-date infrmatin. If examinatin f the merits is nt autmatic in all reviews r appeals under a given natinal system, the judge must at minimum examine the merits f the case whenever requested t d s by r n behalf f the persn seeking prtectin (when such request is nt manifestly unfunded), r the judge is aware f ther reasns t believe the initial decisin may have been incrrect. Judges shuld seek fr appellate review t prvide versight, mnitr quality, prmte cnsistency, and prvide guidance t imprve the reasning f future decisins. T ensure that that the right t a remedy is bth practical and effective, and that the rule f law is respected, judges must be able t play a meaningful and effective rle n appeal r review. T this end, appeals shuld have a suspensive effect n the remval f the applicants frm the jurisdictin pending the final decisin. As with ther factual and legal questins relevant t the case, the judge must be enabled t inquire int whether a deemed safe cuntry f rigin r third cuntry is actually safe in the case f the individual circumstances f the persn, and t set aside any presumptin in this regard. 7. Frm the mment that a persn indicates an intentin t apply fr internatinal prtectin, r there is therwise reasn t believe that the persn may be entitled t such prtectin, the persn has the right t effective and cnfidential access t cmpetent legal advice and representatin, including by an independent lawyer f his r her wn chsing. The State has a psitive bligatin t infrm the persn f this right. Where the persn cannt affrd t pay fr legal advice and representatin, independent legal advice and representatin shuld be made available free f charge. Cmmentary: A persn need nt explicitly reference any frm f internatinal prtectin status t be, in effect, claiming a need fr internatinal prtectin. If there is any reasnable dubt whether a persn is entitled t internatinal prtectin, they shuld (including particularly fr the purpses f applicatin f these Principles) be presumed t be 8

10 s entitled until such time as the dubt is reslved. States must prvide all infrmatin needed fr persns t be aware f and access internatinal prtectin prcedures, and where circumstances suggest the persn may be entitled t prtectin, must assess ptential entitlement n their wn initiative even if the persn has nt made an express request fr such prtectin. Legal prfessinal assciatins and States shuld cperate t ensure cmpetent independent legal assistance fr thse persns wh cannt affrd t pay fr it. Csts f such assistance, t the extent nt brne by the legal prfessin, individual lawyers, r civil sciety, are ultimately the respnsibility f the State. Effective access t legal assistance shuld be available at the earliest pprtunity, including in brder znes, transit znes and receptin centers, even befre status determinatin prceedings begin, in rder t facilitate access t fair and efficient prceedings. States shuld facilitate effective face-t-face cmmunicatin, including where necessary thrugh interpretatin and translatin services (see Principle 12). Legal cunsel shuld ensure that the persn understands his r her rights and respnsibilities, the nature and purpse f the prcedure, the status and steps f his r her applicatin r prcess, the pssible avenues and pprtunities fr internatinal prtectin, and the elements and evidence necessary t establish entitlement t prtectin. Lawyers shuld prvide their clients with quality, cnfidential legal and prcedural advice, ensure the persn s interests are fully and accurately presented, and seek t ensure that the persn s rights are prtected and respected thrughut the prcess, including by accmpanying the applicant t interviews and hearings, preparing submissins, cllecting evidence, and develping and presenting legal arguments. General safeguards fr the rle f lawyers, such as the UN Basic Principles n the Rle f Lawyers, must equally be respected in relatin t refugees and migrants, including amng thers:! the right f lawyers t meet and cmmunicate in private with their clients;! the bligatin fr State and nn-state actrs t respect the cnfidentiality f lawyer-client cmmunicatins;! prtectin f lawyers frm intimidatin, hindrance, harassment r imprper interference;! ensuring lawyers are able t travel and t cnsult with their clients freely bth within their wn cuntry and abrad;! ensuring lawyers are nt subjected t r threatened with prsecutin r administrative, ecnmic r ther sanctins fr any actin taken in accrdance with recgnized prfessinal duties, standards and ethics;! ensuring that where the security f lawyers is threatened as a result f discharging their functins, they are adequately safeguarded by the authrities;! ensuring that lawyers are nt identified with their clients r their clients' causes as a result f discharging their functins;! ensuring that lawyers have access t apprpriate infrmatin, files and dcuments in the State s pssessin r cntrl at the 9

11 earliest pssible time and in all cases in sufficient time t enable lawyers t prvide effective legal assistance t their clients. Judges and lawyers shuld wrk t ensure that prcessing timelines and interview and prceeding scheduling prvide applicants with enugh time t retain and effectively cnsult with a lawyer. This is especially imprtant when the lawyer and client are nly able t cmmunicate thrugh an interpreter. T the extent permitted, judges shuld cnsider extending the time fr legal cnsultatin based n the circumstances f the individual case in rder t ensure fairness and effectiveness f the prcedures. Legal prfessinal assciatins and States shuld wrk tgether t prepare cntingency plans fr ensuring legal assistance wherever there is a risk f large mvements f refugees and migrants. When advising and representing a persn in respect f ptential claims t internatinal prtectin, lawyers shuld cnsider and identify all f the relevant grunds, and seek and receive infrmed instructins frm the persn. Given the particular challenges children face in interactins with the legal system, children have a particularly acute need fr specialized legal assistance, free f charge, in all matters affecting them. Judges, lawyers, and legal prfessinal assciatins shuld strive t ensure that an applicant is assisted by the same lawyer frm the initial receptin thrugh the end f the prceedings and, if that is nt pssible, the new lawyer is familiarized with the case befre transfer. States and legal prfessinal assciatins shuld wrk tgether t ensure that qualified and cmpetent legal persnnel are permanently psted at r near t high traffic internatinal brders and all receptin centers and that an up-t-date list f such persns is available at all internatinal brders and receptin centers. While all applicants shuld ideally have access t a fully qualified and cmpetent lawyer, temprary recurse t alternative legal assistance such as paralegals and law students under the effective supervisin f a lawyer may be cnsidered when strictly necessary t deal with insufficient capacity. If there is insufficient capacity in the legal prfessin in the cuntry, amng ther things, the legal prfessin and the State shuld cnsider whether it is pssible t facilitate cmpetent practitiners frm ther jurisdictins t be able temprarily t practice in the cuntry. In psitive grup determinatins f prima facie eligibility where there is n ptential detriment t the individual, individual access t a lawyer may be less necessary, less urgent r less resurce-intensive, and legal assistance resurces may be distributed t mre cmplex, individual claims in which there is a ptential detriment. Such cnsideratins d nt apply in any case where the grup determinatin wuld ptentially prvide lesser prtectin than an individual determinatin wuld have, and the grup determinatin prejudices any future individual determinatin. 10

12 DEPRIVATION OF LIBERTY 8. Every deprivatin f liberty f any refugee r migrant must be subject t prmpt and autmatic judicial review f the lawfulness f detentin, with guarantees f fair and effective prcess in each individual case. The judicial authrity must be able t make a prmpt and effective rder fr release if it finds that the detentin is unlawful under natinal law r internatinal human rights r refugee law. The detainee has a right t a qualified, independent and cmpetent lawyer t assist in such prceedings. Cmmentary: Principle 8 applies t any detentin f a migrant r refugee n any grund, whether criminal, administrative r therwise. It is withut prejudice t the psitin f many (including the ICJ) that n-ne shuld be deprived f liberty slely n grunds f their immigratin status, including in cases f irregular entry. Internatinal law prhibits, fr instance, detentin f a refugee r migrant n the basis f his r her race, clur, sex, language, religin, plitical r ther pinin, natinal r scial rigin, prperty, birth r ther status, such as asylum-seeker r refugee status. Refugees and migrants may, at mst, be detained fr immigratin-related reasns nly exceptinally. Detentin f children n grunds f their r their parents migratin status vilates the rights f the child and is incmpatible with the best interests f the child, and the detentin f children slely fr immigratin-related purpses shuld be prhibited in all circumstances. In the case f stateless persns, being undcumented r lacking required immigratin / residence permits cannt, by itself, cnstitute grunds fr detentin. Internatinal human rights law and standards recgnize that anyne wh is deprived f liberty by arrest r detentin n any grunds has the right t challenge the lawfulness f the detentin befre a curt and t be rdered released if the detentin is fund nt t be lawful (e.g. ICCPR, article 9(4)). Additinally, thse arrested n criminal grunds have the right t be brught prmptly befre a judge r ther judicial fficer (e.g. ICCPR, article 9(3)). See als the UN Bdy f Principles fr the Prtectin f All Persns under Any Frm f Detentin r Imprisnment, Articles 4, 11, 32, 37. Review f the lawfulness f the deprivatin f liberty shuld include cnsideratin f the legal and factual basis asserted t justify the detentin, as well as its necessity, reasnableness and prprtinality. In assessing the impact f detentin, judges shuld take int accunt the age, gender, state f health and ther relevant persnal circumstances f the individual. Judges shuld, in each individual case, as part f determining whether the detentin is lawful and nn-arbitrary in relatin t the facts and law, shuld fully cnsider all available alternatives t detentin, ensure such alternatives d nt in practice amunt t detentin by anther name, and ensure that detentin is nly rdered as a time-limited measure f last resrt when n alternative is available. Internatinal standards emphasize the imprtance f the prmptness f the detainee s access t the curt, f the hearing and deliberatin by the curt, the issuance f a decisin, and executin f any rder fr release. Judges and lawyers shuld therefre d their utmst t avid 11

13 any undue delay at all stages f the prcess. In general, judicial review shuld take place n later than 24 t 48 hurs after the decisin t detain the persn. In particular, if the natinal legal system generally prvides fr judges t review the lawfulness f detentin at the same time as ther questins relevant t the applicant s status determinatin, but the status determinatin is prlnged, judges have a duty t separately evaluate the questin f detentin withut further delay. Natinal legal systems shuld prvide fr autmatic peridic judicial review f the lawfulness, necessity and prprtinality f any nging detentin. The refugee r migrant and his r her representative shuld be able t attend and prvide infrmatin and submissins t such peridic reviews. Judges, lawyers, and legal prfessinal assciatins shuld, tgether with States, ensure that refugees and migrants in detentin have uncnditinal, effective, prmpt, and regular cnfidential access t cmpetent and independent legal assistance, including withut charge in cases where the persn cannt pay. Legal prfessinal assciatins shuld wrk with states t ensure that an up-t-date list f cntact infrmatin f qualified legal persnnel is available t all persns detained in airprt transit znes and at ther pints f entry. Lawyers shuld, t the extent pssible, mnitr the cnditins f detentin and ensure the rights f refugees and migrants in detentin are being respected and that they are being held in a dignified and humane manner. Judges shuld, t the extent permitted by natinal law, exercise a similar mnitring functin, and legislatrs shuld prvide fr this where nt already prvided fr. Persns deprived f their liberty must be ensured effective remedies, including judicial remedies, where the cnditins f detentin d nt cmply with internatinal standards (see als Principle 10). 12

14 REMOVALS 9. Persns lawfully in the territry f a State, and ther persns wh claim r therwise may be entitled t internatinal prtectin, may nt be remved invluntarily frm the jurisdictin f a State withut recurse t a fair and effective prcedure. Such persns have a right f access t a qualified, independent and cmpetent lawyer, bth in remval prceedings and in cases where the return is said t be vluntary. Summary, arbitrary, cllective r mass expulsins r remvals shuld be prhibited in natinal law. Cmmentary: A persn is presumptively entitled t internatinal prtectin whenever the persn effectively claims such entitlement, r there are ther reasns t believe he r she may be entitled t it (see als Principle 7 and cmmentary abve). Principle 9 is based n, amng ther surces: article 13 f the Internatinal Cvenant n Civil and Plitical Rights (ICCPR); nnrefulement bligatins arising frm fr instance articles 6 and 7 f the ICCPR; articles 32 and 33 f the Refugee Cnventin; and similar prvisins in reginal treaties and instruments. T the extent that sme f these surces cntemplate exceptins t certain prcedural guarantees in the cntext f natinal security r public rder, any such exceptins must be strictly cnstrued, and applied nly when and t the extent abslutely necessary and prprtinate (including that greater restrictins f prcedural safeguards may nly be applied when lesser restrictins wuld demnstrably be ineffective). Further, such exceptins are inapplicable in relatin t certain grunds fr internatinal prtectin: fr example, in relatin t the risk f trture (see, fr illustratin, Human Rights Cmmittee, Mansur Ahani v. Canada, N. 1051/2002 (2004)). Judges shuld ensure in remval prceedings that the recrd is cmplete, including where necessary by practively asking questins f the persn and the State, and where pssible thrugh independent research, t ensure that justice is dne. Judges shuld cnsider the individual circumstances f every individual with due diligence and gd faith and ensure that adequate justificatin has been presented, and that the remval is nt prhibited under internatinal human rights and refugee law and standards, befre issuing a remval rder. In particular, bligatins f nn-refulement, whether arising under internatinal human rights r refugee law, must be fully respected. Access t a lawyer in remval prceedings is necessary t ensure the fairness and effectiveness f the prcess. Access t a lawyer in cases where the return is said t be vluntary is necessary t ensure that the will f the migrant is being exercised vluntarily. If the cnsent f a persn wh claims r therwise may be entitled t internatinal prtectin is sught fr his r her remval, the persn s lawyer (r, if the persn is withut a lawyer, anther independent lawyer) shuld be present t ensure that any cnsent t vluntary return prcesses is fully infrmed and given free f any cercin and that persns d nt sign anything withut fully understanding the dcument s cntent and cnsequences. 13

15 Particularly in the cntext f large scale mvements, judges shuld issue temprary prtectin measures if needed t prevent mass expulsins at brders. Where such measures are nt currently recgnized in natinal law, legislatrs shuld prvide fr them. Judges and lawyers shuld ensure that any remval rders are prvided in writing, in a language the persn understands, with the reasns fr expulsin and infrmatin n hw t challenge the remval rder. Judges and lawyers shuld analyze any readmissin agreements entered int by the State, and the factual circumstances, t ensure that n ne is remved withut effective human rights guarantees. Judges shuld be cnfident that n persn is remved t a cuntry withut a well-functining asylum system with the resurces, infrastructure, and rule f law necessary t guarantee the human rights f the persn. Judges and gvernment lawyers shuld ensure that persns claiming r wh therwise may be entitled t internatinal prtectin, and their lawyers, are fully aware f any remval prceedings and any evidence relied upn t justify remval, and shuld allw the persn and their lawyer sufficient time t prepare and submit evidence and arguments against their expulsin. Judges shuld never allw such a persn t be expelled withut a reasned decisin making sufficient reference t the relevant legal prvisins and the facts f the individual case after fully hearing the persn and their reasns against expulsin. In rder t ensure that the rle f the curts in relatin t such matters is meaningful and effective, in cases where a persn challenges a remval rder n the basis that it will vilate the State s nn-refulement bligatins, the persn has the right t an appeal with suspensin f the effects f the rder pending hearing and decisin n the appeal. 14

16 EFFECTIVE REMEDY AND ACCESS TO JUSTICE 10. Refugees and migrants, like ther persns, have at all times and in all circumstances the right t an effective remedy and reparatin fr vilatins f human rights, which includes access t the curts and access t legal advice and representatin. Refugees and migrants wh allege they have been victims f crimes, whmever the perpetratr, als have the right t equal access t justice and equal treatment in the prcess f investigatin, prsecutin f such crimes, as well as in any prcedures fr cmpensatin r ther frms f reparatin. Cmmentary: Principle 10 applies t all vilatins f human rights and crimes, nt nly thse related t a persn s status as a refugee r migrant. It includes the full range f civil, plitical, ecnmic, scial and cultural rights recgnized under internatinal law (as well as relevant reginal instruments). Principle 10 applies bth t vilatins and crimes in the State f ultimate destinatin, and t thse that ccur when a refugee r migrant is in transit. These Principles d nt directly address questins relating t the territrial jurisdictin f curts t deal with vilatins r crimes that have ccurred in anther State. Refugees and migrants must have effective access t justice fr human rights vilatins, withut discriminatin. In particular, they must in law and practice have access t all necessary remedies befre the dmestic curts, n an equivalent basis t natinals f the State. The right t access t an effective remedy and reparatin fr vilatins f human rights, withut discriminatin, is recgnized bth by particular treaties (such as the Internatinal Cvenant n Civil and Plitical Rights, article 2(3)), and mre generally: see fr example the UN Basic Principles and Guidelines n the Right t a Remedy and Reparatin fr Victims f Grss Vilatins f Internatinal Human Rights Law and Serius Vilatins f Internatinal Humanitarian Law. The right t equal access t justice fr ther crimes is inherent in the nn-discriminatin clauses f human rights treaties. It is als recgnized in instruments such as the UN Declaratin f Basic Principles f Justice fr Victims f Crime and Abuse f Pwer, and is further reflected in article 16 f the Refugee Cnventin. Refugees and migrants must have effective access t qualified, independent, and cmpetent lawyers fr the purpse f receiving advice and representatin cncerning alleged human rights vilatins by r in the State, n an equivalent basis t natinals f the State. Lawyers and judges shuld seek t ensure that refugees and migrants are nt remved frm the State as a cnsequence f asserting their right t access justice. Lawyers shuld cnsider using strategic litigatin t challenge any systemic deficiencies in refugees r migrant s access t services and t strengthen status determinatin prcedures. Judges and lawyers shuld ensure that effective child- and gendersensitive infrmatin and prcedures fr seeking remedies are available. 15

17 INDEPENDENCE, IMPARTIALITY, AND EQUALITY BEFORE THE LAW 11. Whenever a decisin in relatin t a refugee r migrant is entrusted t a judicial bdy, the bdy must meet internatinal standards f judicial cmpetence, independence and impartiality. Cmmentary: In line with the UN Basic Principles n the Independence f the Judiciary:! The independence f the judiciary shall be guaranteed by the State and enshrined in the Cnstitutin r the law f the cuntry. It is the duty f all gvernmental and ther institutins t respect and bserve the independence f the judiciary.! The judiciary shall decide matters befre them impartially, n the basis f facts and in accrdance with the law, withut any restrictins, imprper influences, inducements, pressures, threats r interferences, direct r indirect, frm any quarter r fr any reasn.! The judiciary shall have jurisdictin ver all issues f a judicial nature and shall have exclusive authrity t decide whether an issue submitted fr its decisin is within its cmpetence as defined by law.! There shall nt be any inapprpriate r unwarranted interference with the judicial prcess, nr shall judicial decisins by the curts be subject t revisin. The Human Rights Cmmittee, interpreting articles 13 (due prcess in expulsins) and 14 (independence f judiciary / fair hearing) f the ICCPR, has stated:! The first sentence f article 14, paragraph 1 guarantees in general terms the right t equality befre curts and tribunals. This guarantee nt nly applies t curts and tribunals addressed in the secnd sentence f this paragraph f article 14, but must als be respected whenever dmestic law entrusts a judicial bdy with a judicial task. (General Cmment n 32, para 7)! The Cmmittee has stated that while article 14(1) des nt in general directly apply t expulsin and deprtatin prcedures, which are mre specifically addressed by article 13 ICCPR, at the same time: The prcedural guarantees f article 13 f the Cvenant incrprate ntins f due prcess als reflected in article 14 and thus shuld be interpreted in the light f this latter prvisin. Insfar as dmestic law entrusts a judicial bdy with the task f deciding abut expulsins r deprtatins, the guarantee f equality f all persns befre the curts and tribunals as enshrined in article 14, paragraph 1, and the principles f impartiality, fairness and equality f arms implicit in this guarantee are applicable. All relevant guarantees f article 14, hwever, apply where expulsin takes the frm f a penal sanctin r where vilatins f expulsin rders are punished under criminal law. (General Cmment n 32, paras 17 and 62) T be impartial, when assessing the credibility f individuals, judges need t take int accunt cultural differences, trauma, and ther 16

18 individual circumstances and factrs particular t the individual and the cuntry cncerned, that may explain behaviurs the judge wuld therwise infer as reducing credibility, such as lack f details, lack f crrbrating dcumentary evidence, r inaccuracies r incnsistencies in testimny r dcumentary evidence. In rder t enhance the cmpetence, independence and impartiality f the judiciary and legal prcess, judiciaries, States, legal prfessins, civil sciety, and internatinal and reginal agencies shuld cperate t ensure initial and cntinuing training f judges and lawyers n:! Internatinal refugee law and relevant internatinal human rights law,! Natinal immigratin laws,! The natinal framewrk f refugee and immigratin prcesses and prcedures,! Cultural cmpetency, detectin and cuntering f inherent bias, and crss-cultural interviewing skills,! Cuntry cnditins and cuntry f rigin infrmatin,! Migratin and human trafficking issues, and! The specific needs and vulnerabilities f persns at heightened risk f abuse (including fr instance wmen, children, persns with disabilities, trafficked persns, abuse victims, trture victims, indigenus persns, and persns subject t discriminatin r vilence n the basis f their actual r imputed sexual rientatin r gender identity), and hw t sensitively interact with such persns. While individual judges shuld generally remain utside f debate within plitical institutins abut refugee and migratin issues, judges and lawyers shuld be ready when apprpriate t insist, bth t thers within their prfessins and when necessary t the brader public, n the human rights f all persns, including refugees and migrants, and the fundamental rle f independent judges and lawyers in uphlding these rights and the rule f law in this cntext. Internatinal, reginal and natinal prfessinal assciatins, as well as judicial and bar cuncils, may have a particular rle t play in this regard. With prper prtectins t ensure independence and impartiality, as well as full prcedural safeguards f fairness, specialized tribunals with expertise in immigratin and asylum law can be a further means f ensuring effective and efficient access t justice. 17

19 12. Judges and lawyers shuld ensure that refugees and migrants have access t a qualified and independent interpreter in preparatin fr, during, and if relevant fllwing, all prceedings including status determinatins, detentin prceedings, remval prceedings, and appeals. Cmmentary: Fr the right t prcedural fairness and t an effective remedy t be meaningful, and t ensure the quality and justness f judicial decisinmaking, persns affected by such prceedings must be able t understand and t participate as regards bth the decisin-maker and the persn s lawyer; where the persn is nt cmpetent in the language used in the prceeding, interpretatin becmes necessary. All curt decisins and similar legal dcuments relevant t the status r rights f a persn shuld be translated int and presented t the persn in a language the persn is knwn t understand. Legal prfessinal assciatins, individual lawyers, judges, and administrative fficials shuld ensure that interpreters are cmpetent, independent, and nt biased in any way against refugees and migrants. They must ensure that there is sufficient ability fr meaningful cmmunicatin between the individual, their lawyer, and the decisin-maker thrughut all aspects f the prcess. 13. Judges and lawyers must ensure equal treatment, equal prtectin f the law, and equality befre the law, withut discriminatin, in accrdance with internatinal standards. Frmal equality f treatment is nt enugh; judges and lawyers shuld cnsider and cunter-act the ptential fr frmally neutral measures r standards t result in indirect discriminatin in their actual impact. Cnsistent with the principle f nn-discriminatin, the rights f thse at heightened risk f discriminatin r ther human rights vilatins and abuses must be ensure at all times, including but nt limited t: persns with disabilities; wmen; children; trafficked persns; stateless persns; victims f trture and ther such abuses; members f natinal, ethnic, religius r linguistic minrities; indigenus persns; stateless persns; persns subject t discriminatin r vilence n the basis f their actual r imputed sexual rientatin r gender identity. Cmmentary: Judges and lawyers shuld recgnize and crrect any real disadvantages a persn wh claims r therwise may be entitled t internatinal prtectin might have and, t the extent pssible, shuld institute any necessary cuntervailing measures t help reduce r eliminate the bstacles. (Where the judge is nt able t institute such measures directly, he r she shuld at minimum affirm the need fr such measures and take apprpriate remedial actin in their absence.) Judges shuld cnsider the heightened risks f vilatins f fundamental rights upn return t their cuntry f rigin f such persns due t their specific vulnerability. Judges and lawyers shuld be aware f, advise n, and cnsider the variety f claims that might be available t different applicants 18

20 especially where there may be additinal ptins fr certain classes f peple including wmen, children, and trafficking victims. Judges and lawyers need t be aware f the special vulnerabilities f thse in detentin such as children wh may be mre likely t withdraw their claims and agree t return as a result f misunderstandings r the threat f prlnged detentin r uncertainty. Judges shuld be aware f child-specific frms and manifestatins f persecutin entitling the child t prtectin under internatinal law. In matters relating t children, judges shuld make the best interests f the child a primary cnsideratin. Judicial prcedures shuld be adapted t the specific needs f children. Determinatin f the status f unaccmpanied r separated children shuld be treated with urgency, as shuld cases in which the age f a child is being disputed. Legal assistance shuld be assured age determinatins prcesses. Legal prfessinal assciatins shuld wrk with States t develp gender and age sensitive plicies and capacities t ensure the rights and address the particular needs f children, prevent separatin f families, and prevent and respnd t cases f gender-based vilence. Lawyers shuld ensure that female asylum-seekers are given the pprtunity t ldge an individual applicatin separate frm male relatives, have the right t be given their wn legal advice, and are given the pprtunity t be interviewed in private and separately frm their male relatives and by a female interviewer, with similarly separate hearings if desired. In assessing credibility judges must fully cnsider and take accunt f sensitive circumstances and any particular vulnerabilities f r risks t the individual, including hw disability r trauma can affect memry, the manner in which evidence is given, and the way questins are answered. Judges shuld tailr their inquiry and questining apprpriately t the needs f the applicant. Judges and lawyers shuld ensure that the interview and hearing envirnment is nt intimidating, hstile, r insensitive t thse with particular vulnerabilities. Any disability r particular vulnerability shuld nt negatively affect access t legal aid, the right t be present and heard, r any f the ther rights set ut in these Principles. Judges and lawyers shuld strive t minimize re-victimizatin r trauma. When interviewing thse at heightened risk, judges and lawyers shuld generally use pen-ended questins that enable the mre difficult issues t emerge and the individual t apprach their trauma in a manner they are mst cmfrtable with Especially regarding children, judges shuld be aware f and fully cnsider any cnflicts f interest between the gvernment agencies making assessments as t age and eligibility fr scial services and the utcme f that decisin. Judges shuld seek t ensure that refugee and migrant children are placed in the same facilities as and have equal access t scial services and educatin as wuld be a child natinal in need f state prtectin. It is the rle f the judge and the lawyer t prtect individuals against any risk f abuse arising frm the imbalance f pwer between the gvernment and the individual. Where a persn is unable t read, decisins regarding the persn shuld be cmmunicated t him r her rally, in additin t the written judgment r rder. 19

21 NATIONAL JUDICIARIES AND INTERNATIONAL LAW 14. Judges shuld be aware f the internatinal human rights and refugee law and standards applicable t the State. Judges shuld be aware that, as an rgan f the State, an act (r failure t act) by the judge that is incnsistent with internatinal law will place the State in vilatin f its internatinal legal bligatins. Judges shuld accrdingly seek t ensure that all decisins and ther acts r inactin by the judge are fully cnsistent with the State s internatinal legal bligatins. 15. In rder that judges are nt asked t apply natinal laws that ptentially wuld lead the judge t vilate internatinal human rights r refugee law, legislatrs and executive fficials shuld regularly review, and if necessary amend, all laws and regulatins applicable t refugees and migrants t ensure that the natinal legal framewrk is fully cnsistent with the bligatins f the State under internatinal human rights and refugee law. 16. When a judge is cnfrnted with an apparent cnflict between natinal and internatinal law, in which an applicatin f natinal law by the judge culd cnstitute a vilatin by the State f its internatinal human rights r refugee law bligatins, the judge shuld use any judicial means and techniques r discretin at his r her dispsal t avid the ptential vilatin, including fr instance interpretative techniques and cnstitutinal dctrines, remedies r references. If the judge is f the pinin that a vilatin wuld be an unavidable cnsequence f applying the natinal law, the judge shuld make this clear t the individual, his r her lawyer, and the gvernment, and: (1) where the judicial act r inactin wuld make the judge respnsible fr r cmplicit in a crime under internatinal law, the judge shuld refuse t d the act r desist frm the missin, and state his r her reasns fr s ding; (2) where the judicial act r inactin wuld cnstitute r cntribute t a vilatin f internatinal human rights r refugee law nt cnstituting a crime under internatinal law, the judge, if he r she des nt refuse t act (r t mit t act), shuld at minimum explicitly state in the judgment, rder r decisin that he r she believes the act r inactin t be in the vilatin f the State s internatinal human rights r refugee law bligatins but that the judge cnsidered that he r she was nevertheless unavidably cmpelled by natinal law t make such a ruling. In such circumstances, any pwer t suspend the peratin f the judgment, rder r decisin s as t preserve the situatin f the affected individual pending appeals t natinal r internatinal bdies shuld be exercised. 17. Judges, judges assciatins, lawyers, and legal prfessinal assciatins, in their respective rles as guarantrs f human rights, shuld as apprpriate prmte r supprt ratificatin r accessin t and dmestic implementatin f internatinal instruments fr the prtectin f refugees and migrants. 20