CMW/C/GC/2
migrant workers and members of their families. While article 22 regulates only the
procedure and not the substantive grounds of expulsion, its purpose is to prevent arbitrary
expulsions and to provide substantive protection against expulsions in certain situations.
Article 22 applies to all procedures aimed at the obligatory departure of migrant workers
whether described in national law as expulsion or otherwise.
Substantive protection against expulsion: non-refoulement
50.
The principle of non-refoulement, as contained in international and regional human
rights and refugee law, is the prohibition on forcibly removing anyone, in any manner
whatsoever, to a country or territory where they would be at real risk of persecution or
serious human rights violations or abuses. In the view of the Committee, this principle
covers the risk of torture and cruel, inhuman or degrading treatment or punishment,
including inhumane and degrading conditions of detention for migrants or lack of necessary
medical treatment in the country of return, as well as the risk to the right to life (arts. 9 and
10 of the Convention). It also applies to situations where individuals would not be protected
from onward refoulement. The Committee is of the view that migrants and members of
their families should be protected in cases where expulsions would constitute arbitrary
interference with the right to family and private life. Migrants and members of their
families in an irregular situation with international protection needs should also be
protected against expulsion.
Prohibition of collective expulsion
51.
Article 22, paragraph 1, of the Convention explicitly prohibits collective expulsion
and requires that each case of expulsion be examined and decided individually. States
parties have an obligation to ensure that their expulsion procedures provide sufficient
guarantees to ensure that the personal circumstances of each migrant worker are genuinely
and individually taken into account. This obligation extends to all spaces over which a State
party exercises effective control, which may include vessels on the high seas. 16
Procedural safeguards in individual expulsion proceedings
52.
Article 22, paragraph 2, seeks to prevent arbitrary expulsions by allowing only those
carried out “in pursuance of a decision taken by the competent authority in accordance with
law.” Article 22, paragraph 3, provides for the decision on expulsion to be communicated to
the migrant worker concerned in a language he or she understands and, upon his or her
request where not otherwise mandatory, in writing and with reasons, save in exceptional
circumstances on grounds of national security. These rights are important to ensure due
process, by enabling migrant workers to prepare their arguments with regard to such a
decision. The right of the persons concerned to be informed of these rights before, or, at the
latest, at the time the decision is rendered, serves the same purpose.
53.
The right of a person to submit the reason he or she should not be expelled and to
have his or her case reviewed by the competent authority (art. 22, para. 4), includes the
right to seek a stay of the decision of expulsion pending review of the said decision. While
a stay of decision does not regularize the status of the person concerned for the time of the
proceedings, it prevents the State party from expelling him or her before a final decision is
rendered. In accordance with article 83 of the Convention, States parties are obliged to
provide an effective remedy, including the right to review by a competent authority for
16
14
See European Court of Human Rights, Hirsi Jamaa and Others v. Italy, Application No. 27765/09
(23 February 2012).
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