CMW/C/GC/2
migrant workers and their family members, whose rights and freedoms as recognized in the
Convention have been violated. The Committee notes that migrant workers and members of
their families must be given adequate time and facilities to pursue such a remedy against
expulsion so as to ensure the effectiveness of their right to review. Such facilities should
include the right to legal assistance and the assistance of an interpreter, if necessary, and be
free of charge, if the circumstances of the case so require. The competent authority
reviewing the decision of expulsion should ideally be a court. The right to appeal expulsion
under article 22, paragraph 4, of the Convention may only be restricted for “compelling
reasons of national security”.
54.
Article 22, paragraph 5, states that if an expulsion decision that has already been
executed is subsequently annulled, the person concerned has the right to seek compensation
according to law. The expelling State shall ensure that the expelled person has the
necessary facilities to pursue his or her compensation claim from abroad, for example, by
appointing a legal representative. Furthermore, the expelling State may not invoke the
earlier (annulled) decision to deny the person concerned re-entry into its territory.
55.
Article 22, paragraph 6, provides for the person concerned by an expulsion decision
to have a reasonable opportunity before or after departure to settle any claims for wages and
other entitlements due to him or her and any pending liabilities. This provision echoes
article 9, paragraph 1, of ILO Convention No. 143 (1975) concerning Migrations in
Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of
Migrant Workers (Supplementary Provisions). The opportunity to settle claims, wages and
other benefits must be effective in practice. Migrant workers often encounter problems
pursuing legal claims in the State of employment once they have returned to their State of
origin, including high litigation costs or difficulties providing evidence. Therefore, States
parties should, whenever possible, grant migrant workers and their family members a
reasonable period of time prior to their expulsion to claim wages and benefits. States parties
should also consider time-bound or expedited legal proceedings to address such claims by
migrant workers. In addition, States parties should conclude bilateral agreements so that
migrant workers who return to their State of origin may have access to justice in the State
of employment to file complaints about abuse and to claim unpaid wages and benefits.
56.
Article 22, paragraph 7, provides for migrant workers and members of their families
who are subject to an expulsion decision to seek entry into a State other than their State of
origin, without prejudice to the execution of the expulsion decision. The exercise of this
choice on the part of the migrant worker and family members is subject to the consent of
the third State.
57.
Article 22, paragraph 8, provides that migrant workers and members of their
families shall be exempt from bearing the costs of their expulsion. The expelling State may
require that they pay their own travel costs, but migrant workers must not be required to
pay the costs of the legal proceedings leading to their expulsion or the costs of their
administrative detention (see also art. 17, para. 8). However, the Committee notes that
migrant workers who are in an irregular situation not of their own making, for example,
redundancy before expiry of a contract or where an employer failed to complete the
necessary formalities, should not be responsible for the costs of expulsion, including travel
costs.
58.
Article 22, paragraph 9, complements article 22, paragraph 6, and article 25,
paragraph 3, stating that migrant workers and family members should not be deprived of
their acquired rights, such as the right to receive wages and “other entitlements,” including
social security benefits or reimbursement of contributions made with respect to such
benefits. States parties should therefore ensure that migrant workers and members of their
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