CMW/C/GC/4-CRC/C/GC/23
C.
Due process guarantees and access to justice (articles 16, 17 and 18 of
the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families; articles 12 and 40 of
the Convention on the Rights of the Child)
14.
Access to justice is a fundamental right in itself and a prerequisite for the protection
and promotion of all other human rights, and as such it is of paramount importance that
every child in the context of international migration is empowered to claim his/her rights.
The responsibility of States parties requires structural and proactive interventions to ensure
fair, effective and prompt access to justice. The Committee on the Rights of the Child, in its
general comment No. 5 (2003) on general measures of implementation of the Convention,
held that an effective remedy requires effective, child-sensitive procedures. It further
outlined that such procedures should guarantee the adoption of certain specific measures in
order to ensure that administrative and judicial proceedings are adapted to the needs and
development of children, and that the best interests of the child is a primary consideration
in all such proceedings.
15.
The Committees are of the view that States should ensure that their legislation,
policies, measures and practices guarantee child-sensitive due process in all migration and
asylum administrative and judicial proceedings affecting the rights of children and/or those
of their parents. All children, including children accompanied by parents or other legal
guardians, should be treated as individual rights holders, their child-specific needs
considered equally and individually and their views appropriately heard and given due
weight. They should have access to administrative and judicial remedies against decisions
affecting their own situation or that of their parents, to guarantee that all decisions are taken
in their best interests17 Measures should be taken to avoid undue delays in migration/asylum
procedures that could negatively affect children’s rights, including family reunification
procedures. Unless it is contrary to the child’s best interests, speedy proceedings should be
encouraged, provided that this does not restrict any due process guarantees.
16.
Children should be able to bring complaints before courts, administrative tribunals
or other bodies at lower levels that are easily accessible to them, e.g., in child protection
and youth institutions, schools and national human rights institutions, and should be able to
receive advice and representation in a child-friendly manner by professionals with
specialized knowledge of children and migration issues when their rights have been
violated. States should ensure standardized policies to guide authorities in offering free,
quality legal advice and representation for migrant, asylum-seeking and refugee children,
including equal access for unaccompanied and separated children in local authority care
and undocumented children.18
17.
More specifically, and in particular in the context of best interest assessments and
within best interest determination procedures, children should be guaranteed the right to:
(a)
Access to the territory, regardless of the documentation they have or lack,
and to be referred to authorities in charge of evaluating their needs in terms of protection of
their rights, ensuring their procedural safeguards;
(b)
Be notified of the existence of a proceeding and of the decision adopted in
the context of the immigration and asylum proceedings, its implications and possibilities for
appeal;
(c)
Have the immigration proceedings conducted by a specialized official or
judge, and any interviews carried out in person by professionals trained in communicating
with children;
(d)
Be heard and take part in all stages of the proceedings and be assisted without
charge by a translator and/or interpreter;
17
18
See Committee on the Rights of the Child, report of the 2012 day of general discussion, para. 75.
Human Rights Council resolution 25/6. See also Advisory Opinion OC−21/14 of 19 August 2014,
Inter-American Court of Human Rights, paras. 108-143.
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