CMW/C/GC/2
promptly informed of the charges against them in a language they understand. In order to
comply with this obligation, States parties should consider preparing standard notification
forms, containing, inter alia, information on available remedies, in the languages that are
most frequently used or understood by migrant workers in an irregular situation in the State
party concerned. Such standard notification forms, however, should be complementary to
the issuance of a detention order containing factual information and the legal grounds
pertaining to the arrest.
29.
Under article 16, paragraph 6, the guarantees of certain rights of migrant workers
and members of their families in custody and pretrial detention are applicable to anyone
suspected of committing or having committed a crime.
30.
Article 16, paragraph 7, provides for the right of migrant workers who are deprived
of their liberty to communicate with the consular or diplomatic authorities of their State of
origin or those of a State representing the interests thereof. It also requires State parties to:
(a)
Inform the said authorities without delay of the arrest or detention of the
migrant worker concerned, if he or she so requests;
(b)
authorities;
Facilitate any communication between the person concerned and the said
(c)
Inform the person concerned without delay of this right as well as of rights
under other applicable treaties; and
(d)
Correspond and meet with representatives of the said authorities and make
arrangements with them for his or her legal representation.
31.
In order to enable detained migrant workers to avail themselves effectively of the
rights under (c) above, States parties shall provide the relevant information without delay,
that is, upon or shortly after admission to the facility where they are deprived of their
liberty and preferably in a language they understand. In relation to (a) above, the
Committee emphasizes that the detaining State shall only contact the said authorities if this
is explicitly requested by the detained migrant worker. In particular, migrant workers with
potential protection needs shall not be brought to the attention of the said authorities
without their knowledge and consent.
32.
Article 16, paragraph 8, provides for the right of all migrant workers and members
of their families who are deprived of their liberty by arrest or detention to take proceedings
before a court, in order that the court may decide without delay on the lawfulness of their
detention. If the court finds that the detention is unlawful, it must order the release of the
detained migrant worker. The Committee considers that mandatory detention of migrant
workers and members of their families in an irregular situation is incompatible with article
16, paragraph 8, if the possibility of judicial review is confined to a formal assessment of
whether the migrant worker concerned entered the State party without a valid entry permit,
without the possibility of release if the detention is incompatible with article 16, paragraph
4.
33.
The Committee considers that anyone arrested and detained solely for immigration
purposes should be brought promptly before a judge or other officer authorized by law to
exercise judicial power to review the lawfulness of the arrest and/or detention and the
continued necessity of such arrest or detention; and to order unconditional release and/or
less coercive measures, if warranted. Further reviews of the continued necessity and
lawfulness of the detention should be carried out at regular intervals by a judge or other
officer authorized by law to exercise judicial power. The burden of proof must rest on the
detaining authorities to demonstrate that the presumption in favour of liberty should be
displaced. The migrant worker must have access to legal representation and advice, if
10