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OEA/Ser.L/V/II.118 Doc. 5 rev. 2 29 December 2003 Original: Spanish
ANNUAL REPORT OF
THE INTER-AMERICAN COMMISSION
FIFTH PROGRESS REPORT OF THE RAPPORTEURSHIP ON MIGRANT WORKERS AND THEIR FAMILIES
II. MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2003
III. CASE-LAW OF THE
INTER-AMERICAN SYSTEM IN
RELATION TO MIGRANT
FIFTH PROGRESS REPORT OF THE RAPPORTEURSHIP ON MIGRANT WORKERS AND THEIR FAMILIES
I. INTRODUCTION
1. Considering the interest that several states have expressed in relation to migration in the Americas, the Inter-American Commission on Human Rights (IACHR) of the Organization of American States (OAS), responding to its broad mandate to protect human rights, decided to devote special attention to the situation of migrant workers and their families in the Americas. Accordingly, in 1997, and in keeping with the appeal from the member states of the OAS, the Special Rapporteurship on Migrant Workers and their Families. On establishing this Special Rapporteurship, the IACHR delimited its scope of action exclusively to migrant workers and their families who are abroad. The IACHR clarified that it would not examine other categories of migrants workers, such as persons who migrate for economic reasons within their own countries, internally displaced persons, stateless persons, refugees, and/or asylum-seekers. Even so, the IACHR is fully aware that the categories just listed not only share common problems but also that internal migrants, refugees, internally displaced persons, stateless persons, and asylum-seekers may in certain circumstances become migrant workers (or vice versa).
2. The IACHR decided to establish the Special Rapporteurship on Migrant Workers in response to the importance the member states of the Organization of American States (OAS) have assigned the issue in the hemispheric agenda.[1]
3. The IACHR responded to this interest and created a mechanism to perform promotional work on behalf of migrant workers and their families. It is important to note that over the years the IACHR has learned of the difficulties that migrant workers face through on-site visits, complaints on human rights violations it has received, and special hearings held to address the issue. The IACHR considers that migrant workers and their families constitute an especially vulnerable social group often subject to abuse and systematic violations of their fundamental rights.
4. The IACHR’s initiative to undertake a specific promotional effort to benefit migrant workers and their families has been well-received by the heads of state and government of the states of the Americas. In this vein, in the Declaration of the Second Summit of the Americas, held in Santiago, Chile, in 1998, the heads of state and government of the Americas proclaimed: “We will make a special effort to guarantee the human rights of all migrants, including migrant workers and their families.”
5. The states also undertook to ensure the full respect for and protection of human rights of all migrant workers; to take measures to eliminate and eradicate all forms of discrimination against them, impeding their abuse and mistreatment at the hands of employers; and to seek to provide the same legal protections for their labor rights as extend to workers who are nationals of the country in which they work. The states indicated, referring to the work of the Special Rapporteur: “Governments will ... Support the activities of the Inter-American Commission on Human Rights with regard to the protection of the rights of migrant workers and their families, particularly through the Special Rapporteur for Migrant Workers.”
6. The Special Rapporteurship on Migrant Workers has several objectives. These include: (a) generating awareness of the states’ duty to respect the human rights of migrant workers and their families; (b) making specific recommendations to the member states on areas related to protecting and promoting the rights of migrant workers and their families, so as to adopt progressive measures benefiting them; (c) preparing specialized reports and studies on the matter; and (d) acting promptly on the petitions or communications in which it is noted that the human rights of migrant workers and their families are violated in any member state of the OAS.
7. During its 106th regular session, in March 2000, the IACHR designated Argentine jurist and Professor Juan Méndez, member of the IACHR (2000-2003), as Special Rapporteur for Migrant Workers and their Families. To carry out his task, Commissioner Juan Méndez received support from the Executive Secretariat of the IACHR and from a small team consisting of: María Claudia Pulido, attorney with the IACHR; Helena Olea, attorney and researcher assistant to Juan Méndez at Notre Dame University; and Andreas Feldmann, researcher on immigration issues and post-doctoral fellow at the Human Rights Program, University of Chicago. In September 2003, and after four years of fruitful work as Special Rapporteur, because of reasons of incompatibility Juan Méndez relinquished his duties. At the next session, that will be held in February 2004, the IACHR will appoint a new Special Rapporteur.
8. Unfortunately, despite the interest expressed by the states in several declarations, the work of the Rapporteurship has been negatively affected by the lack of financial support on the part of OAS member states. In this regard, the activities the Rapporteurship needs to carry out as part of its mandate require adequate financial support. To date, the activities of the Special Rapporteurship have been carried out thanks to a small contribution from the general fund of the OAS, endorsement from the Government of Mexico and, more recently, support from the Ford Foundation. Even though the above-noted contributions have provided some financial relief, the Rapporteurship needs additional, concrete financial contributions if it is to be able to pursue its important work.
9. The IACHR has considered it necessary to produce annual progress reports on different aspects of the issues involving migrant workers from a human rights-based perspective.[2] This approach has been chosen instead of presenting a single report on the situation of migrant workers in the Americas, since such a report would be difficult to produce, considering the scale and complexity of the topic and the resources available to the IACHR. The report we present below has been prepared in that spirit.
10. In addition to this brief introduction, this report is divided into four parts. The second section mentions the main activities of the Rapporteurship in 2003. In the third part the report presents the case-law of the Inter-American system of protection (the Inter-American Commission and Court) in 2003 on issues related to migrant workers and their families and other migration-related topics. Subsequently, the fourth section outlines the key events in the area of migration and human rights in the region in 2003. The fifth and final segment presents the findings of an on-site visit that the Rapporteurship’s team, led by Special Rapporteur Juan Méndez, conducted in Mexico to gather information on various matters related to the situation of migrant workers and their families.
II. MAIN ACTIVITIES OF THE RAPPORTEURSHIP IN 2003
11. In keeping with the mandate conferred by the IACHR, during the last year the Rapporteurship undertook a series of activities. These include the following: (a) monitoring the general situation of migrant workers and their families in the Americas; (b) preparing reports on on-site visits to OAS member states, and attending conferences and fora on migration; (c) developing institutional ties with inter-governmental organizations and civil society organizations working on behalf of migrant workers in the Americas; (d) seeking funds to finance the Rapporteurship; and (e) research with a view to preparing the annual report, as well as special studies.
12. In relation to the work of monitoring the conditions of migrant workers and their families, the Rapporteurship, as is its custom, continued to follow developments in relation to migration in the region. As reiterated in previous reports, observation and monitoring is vital to the work of the Rapporteurship, since it makes it possible to learn more about the human rights situation of migrant workers and their families in the Americas.
13. The Rapporteurship has monitored with special interest the migratory repercussions of the economic and political crises that have affected or continue to affect certain countries of the region. In this regard, the Rapporteurship has continued monitoring the situation in Venezuela and has paid special attention to the migratory effects of the recent political crisis in Bolivia. The Rapporteurship has also closely monitored the situation of countries such as Guatemala, Ecuador, and Peru, where a worsening of economic problems and/or a certain political instability have prompted new migratory movements. Concurrently, the Rapporteurship followed the Colombian armed conflict and the repercussions that the latter has on migratory flows.
14. In 2003, on the other hand, the Rapporteurship devoted time to monitoring and analyzing discussions on the labor rights of migrant workers. In this respect, the Rapporteurship monitored very closely the petition for an Advisory Opinion (OC-18) from the Inter-American Court of Human Rights on the legal status of undocumented workers, submitted by the Government of Mexico, and issued last September 17.[3] This advisory opinion was requested by the Mexican State to clarify the scope of the right to equality and the principle of non-discrimination (Article II of the American Declaration of the Rights and Duties of Man, and Articles 1(1) and 24 of the American Convention on Human Rights), and their application to the labor rights of workers whose immigration status in the state in which they live and work is irregular.
15.
The
Rapporteurship participated actively in the Court’s Advisory Opinion
16. As part of the work related to its mandate, in 2003 the Rapporteurship prepared the report on its on-site visit to Mexico in August 2002. Given the complexity of migration in Mexico, the Rapporteurship team made major efforts to process the information obtained in Mexico and to collect additional information for the report. As noted earlier, visits such as those to Mexico are fundamental to the Rapporteurship’s mandate, since they enable it to do its work more effectively. During these activities, important contacts are made and valuable information is collected about the situation of migrant workers and their families. This helps the Rapporteurship prepare reports on specific situations and make well-documented and responsible recommendations to the states on issues related to the treatment of migrant workers and their families.
17. The Rapporteurship’s team, additionally, also gathered information in order to address new issues related to the situation of migrant workers in the region in 2003. Information was collected on three issues. As part of a long-term project, the effort to collect information for a study of comparative legislation on migration in the Americas has continued. The cooperation of certain academic centers and organizations in the region has been sought to carry out this project. The Rapporteurship has also dedicated efforts to prepare two more studies, one on consular protection and other forms of protection by migrant workers’ countries of origin, and a study on the situation of agricultural migrant workers, who constitute an especially vulnerable group. In is important to underscore that the Rapporteurship maintains ample contact with several organizations nongovernmental organizations and academic research institutions, something that allows it to obtain relevant information concerning the situation of migrant workers and their families, as well as on cases that entail particular interest.
18. In order to fulfill its protection mandate, in 2003 the Rapporteurship participated in several promotional activities with nongovernmental organizations and research centers. In February, representatives of the Rapporteurship traveled to San Jose, Costa Rica, to participate in the Seminar Towards a Regional Strategy for the Protection and Promotion of Migrant Workers’ Human Rights, organized by the Inter-American Institute of Human Rights. The meeting aimed at providing specialized training to Ombudsman offices of several states in the region. Representatives of the Rapporteurship discussed the design of strategies to tackle some of problems faced by migrant workers, particularly in regards to the actions that Ombudsman offices may undertake to produce a comprehensive prognosis of the main problems afflicting this population in the region. In this regard, representatives of the Rapporteurship conducted a workshop concerning the work undertaken by the IACH to protect and promote the rights of this population in the Americas.
19. In September, in turn, representatives of the Rapporteurship participated in a conference that addressed and reviewed protective mechanisms for migrant workers available within the Inter American System of Human Rights. The conference, organized by the Human Rights Institute of the Central American University (IDHUCA) in San Salvador, was on of the activities of the so-called Migrant Week, an initiative organized by IDHUCA to underscore the contribution of Salvadoran migrants to the Salvadoran society and the societies of receiving countries. Members of the Rapporteurship directed a workshop in which they explained the work undertaken by the IACH to protect and promote the rights of migrant workers in the Americas.
20. Also in September, part of the Rapporteurship’s team took part in a seminar on migrant workers working in agriculture. The meeting, held in Cancun, Mexico, was organized the International Human Rights Law Group, a nongovernmental organization based in Washington D.C.. The conference addressed the situation of agricultural migrant workers in the region and discussed the problems and challenges that this group faces. The conference gathered members of organizations representing farm workers of several countries in the Americas including the United States, Mexico, Brazil, Canada and Central America. Members of the Rapporteurship led a workshop in which they elaborated on the work carried out by the IACH to protect and promote the rights of migrant workers in the Americas.
21. Furthermore, Special Rapporteur Méndez and representatives of his team participated in an Activists Roundtable, an interesting initiative organized by the Human Rights Program of the University of Chicago. This three year project, which aims at fostering discussion between activists and scholars to enhance their knowledge on migration affairs and the problems faced by migrant workers, gathered representatives from the United States, Mexico, El Salvador, and Guatemala working on issues pertaining to migration and development.
22. In terms of participation in intergovernmental fora on migration affairs, the Rapporteurship participated in the Eight Annual Meeting of the Regional Conference on Migration (RCM) held in Cancun, Mexico, on May 27-30 2003. This important multilateral group was created in 1996 to tackle the challenges posed by increasing migratory flows in the region. Currently eleven countries compose the CMR (Belize, Canada, Costa Rica, the Dominican Republic, El Salvador, Guatemala, Honduras, Mexico, Nicaragua, Panama and the United States) while other five participate as observers (Argentina, Colombia, Ecuador, Jamaica and Peru). It should be noted that in April 2000, the IACHR was made an official observer at this important forum. At the same time, the Rapporteurship approached the organization of the South American Conference on Migration in order to assess the chances of also becoming an observer to this parallel multilateral migration forum. This fora, which also seeks to address from a multilateral perspective diverse migration issues, gathers ten South American states including Argentina Bolivia, Brazil, Colombia, Chile, Ecuador, Paraguay, Peru, Uruguay and Venezuela. It is relevant to emphasize that attending these types of fora is quite important for it allows the Rapporteurship to follow closely discussions concerning migratory policy in the region.
23. Among other duties, the Rapporteurship also participated in the discussion concerning the admissibility of petitions as well as the issuance of precautionary measures involving cases related to migrant workers. This work was carried out as a way to support the activities of the Executive Secretariat of the IACHR.
III. CASE-LAW OF THE INTER-AMERICAN SYSTEM IN RELATION TO MIGRANT WORKERS AND THEIR FAMILIES
24. Traditionally, as part of its annual report, the Rapporteurship informs the General Assembly of the developments in the case law of the organs of the inter-American system for the protection of human rights related to or that impact on migrant workers and their families. The decisions of the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights (hereinafter the “Commission” and the “Court”) are valuable for spelling out the content and scope of the states’ obligations to protect and guarantee the human rights of migrant workers and their families. This year’s report examines the case law of 2002 and 2003 of both the Commission and the Court.
25. In the course of 2002, the Commission admitted a petition on due process guarantees and the right to asylum in the Bahamas. In addition, it admitted a petition on personal liberty and the right to consular protection against Ecuador. Also in 2002, the Commission declared inadmissible a petition submitted on behalf of three migrants who were expelled from the United States for crimes that they had committed prior to the issuance of the 1996 Illegal Immigration Reform and Immigrant Responsibility Act, which classified such conduct as “aggravated offenses.” In addition, the Commission approved the report on the merits in the case of a Mexican migrant sentenced to death in the United States, even though his right to information on consular protection was not guaranteed, a violation of his right to due process guarantees.
26. In 2003, the inter-American system of human rights addressed the question of migrant workers and their families through cases and a request for an advisory opinion submitted by the Government of Mexico regarding the right to equality of undocumented migrants. In 2003, the Commission declared admissible two petitions that addressed issues of interest to the Rapporteurship. The first refers to the consular protection and due process guarantees for a Mexican citizen sentenced to death in the United States. The second petition admitted refers to a Chilean citizen, deprived of liberty and tried criminally, who was not guaranteed his rights to personal liberty, consular protection, due process, or property in Ecuador.
27. Finally, in the course of 2003, the Commission referred two applications to the Inter-American Court of Human Rights regarding the rights of migrant workers and their families. The first refers to the criminal proceeding against a Colombian citizen in Ecuador who was not guaranteed nor afforded any protection for his right to judicial guarantees, including the right to information on consular assistance. The second application refers to two Haitian-Dominican minors whose Dominican nationality was not recognized, even though they had been born in the Dominican Republic and it recognizes and applies the principle of jus soli. The lack of documentation entailed grave consequences for these minors, as it kept them from attending school.
Due process guarantees and the right of asylum
Report Nº 6/02, admissibility of Petition 12.071
28. In February 2002, the Inter-American Commission approved Report Nº 6/02 on the admissibility of a petition on behalf of 120 Cuban citizens and eight Haitians detained at the Carmichael Road Detention Center in Nassau, Bahamas.
29. The petitioners, who are non-governmental organizations, note that many of the victims likely have grounds for claiming refugee status. Nonetheless, the victims were unable to do so because the state does not have any procedure in place for that purpose. Accordingly, the victims cannot be required to exhaust domestic remedies, as they were deported. The petitioners add that the Bahamas does not guarantee due process since it denied the victims access to domestic remedies, including against the decision to detain them, depriving them of their liberty. In view of the foregoing, the petitioners argue that one of the exceptions to the exhaustion requirement applies in this case. In addition, the petitioners allege that the following rights established in the American Declaration of the Rights and Duties of Man have been violated: the right to life, liberty, and personal integrity (Article I); right to equality before the law (Article II); the right to protection for honor, personal reputation, and private and family life (Article V); right to a family and protection thereof(Article VI); right to recognition of juridical personality and civil rights (Article XVII); right to justice (Article XVIII); right of protection from arbitrary arrest (Article XXV); and right of asylum (Article XXVII).
30. When lodging the complaint with the IACHR, the petitioners asked that precautionary measures be issued to protect the victims from irreparable harm. The measures should have been to request the Bahamas to suspend the deportations of Cuban citizens to Cuba; to insist on it developing a written procedure for determining refugee status in keeping with international standards; and to establish a maximum time for this procedure for the purpose of preventing prolonged detention at the Carmichael Road center, which is not adequate for prolonged detentions. On August 14, 1998, the IACHR issued precautionary measures requesting the Bahamas to suspend the deportation of Cuban nationals until such time as they had an opportunity to study the petition. The State did not respond to the request for information from the IACHR.
31. In August 1998, the petitioners reported that 47 Cuban citizens had been repatriated, in addition to another 65 persons repatriated a few days earlier. The petitioners indicated that of the initial group of 120 Cubans, 72 of them were still detained. In October 1998, the Commission reiterated its previous request for information to the state, as it requested information on the 120 Cuban citizens who had been detained as of August 13, 1998, and background information on the domestic and international legal framework applicable to these cases.
32. In October 1998, the State finally answered the IACHR’s request for information, indicating that domestic remedies had not been invoked or exhausted. The legal order of the Bahamas, it indicated, orders the offices of the defense forces, the customs service, or the police to exercise their power when they have grounds to consider reasonably that a person is on a vessel in the territorial waters of the Bahamas is landing or is preparing to land in violation of the immigration laws. In that case, the public officials have the duty to board such boat or aircraft and perform their duties, which include searching the vehicle, questioning the persons on board, and demanding that papers be shown.
33. The State adds that it is a party to the Convention relating to the Status of Refugees and its Protocol, and that it applies procedures that are in keeping with that international instrument. Considering this, the State sought the cooperation of the United Nations High Commissioner for Refugees (UNHCR). The procedure described above, however, has not been developed in Bahamian legislation; rather it is an administrative procedure in which government and UNCHR officials hold interviews and make recommendations. The State argues that in every case in which it has received a favorable recommendation, it has acted accordingly. Since becoming a party to the Convention relating to the Status of Refugees (September 1993), Bahamas has guaranteed asylum to 78 Cuban nationals.
34. The Commission determined that it was competent ratione temporis, ratione materaie, and ratione personae to take cognizance of this petition. With respect to the violation of Article 33 of the Convention relating to the Status of Refugees and its Protocol, the IACHR indicated that it this case it will make reference to instruments of the universal system for the protection of human rights insofar as they help interpret Article XXVII of the American Declaration on the right of asylum.
35. As regards the exhaustion of domestic remedies requirement and the exceptions to it, the Commission determined that in keeping with the case-law of the inter-American system established in the Velásquez Rodríguez case,[5] the rule of exhaustion of domestic remedies requires that they be available, and that they be adequate and effective. In this case, the petitioners allege that the remedies are not available, shifting the burden of proof to the State, which must show otherwise. In its answer the State admitted that while there are no rules establishing a procedure for seeking recognition of refugee status, in practice there is an administrative procedure.
36. The Commission determined that given that there is a relationship between the exhaustion of domestic remedies and the human rights violations alleged in this case, it will defer its consideration of the exhaustion issue and the question of when the petition was submitted to its decision on the merits. Finally, it found that no other procedures are pending before any other intergovernmental organization over the same facts. By virtue of the foregoing, the Commission decided to admit the petition for the alleged violation of Articles I, II, V, VI, VII, XVII, XVIII, XXV, and XXVII of the American Declaration.
Due process guarantees and right to protection of the family
Report Nº 19/02, inadmissibility of Petition 12.379
37. In February 2002, the Commission approved Report Nº 19/02, by which it ruled petition 12,379 inadmissible. Petition 12.379 was submitted on behalf of Mario Lares-Reyes, Vera Allen Frost, and Samuel Segura in November 2000. These persons are foreign citizens who had migrated to and were living in the United States, where they had obtained the status of permanent residents. The U.S. government ordered their expulsion since each of them had been convicted of an “aggravated offense,” pursuant to the classification established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.
38. The petitioners indicated that Messrs. Lares-Reyes, Allen Frost, and Segura had exhausted domestic remedies, or, alternatively, that the exceptions to the exhaustion of domestic remedies requirement applied, and that accordingly their petition is admissible. The petitioners indicate that the United States is responsible for violating the right to the protection of private and family life (Article V), the right to a family and protection thereof (Article VI), the right to protection for mothers and children (Article VII), the right to justice (Article XVIII), and the right to protection from arbitrary arrest (Article XXV) of the American Declaration of the Rights and Duties of Man of Messrs. Lares-Reyes, Allen Front, and Segura, considering that the legislation ordered their expulsion, as well as the consequences of this measure for these persons and their families.
39. The petitioners argue that the concept of “aggravated offense” is very broad, such that legal residents found guilty of crimes committed several years ago, in whose trial the right to due process was not guaranteed, are now adversely affected by a subsequent immigration statute. In addition, they argue that the decision to expel those who have committed serious crimes bars humanitarian or other considerations; and that the concept of “aggravated offense” is applied retroactively to convictions imposed prior to the enactment of the law. In addition, the petitioners argue that the statute suppressed the possibility of judicial review, since an expulsion order must be appealed to the Board of Immigration Appeals and subsequent judicial review is expressly excluded for deportations based on “aggravated offenses.” The petitioners add that the U.S. immigration law authorizes the deprivation of liberty, without bond, during the expulsion process. Finally, they argue that the laws in force and current practices gravely and unjustifiably interfere in the rights of the family, since in many cases these measures break up migrants’ families.
40. In June 2001, the United States Supreme Court handed down two judgments related to the situations alleged by the petitioners. The first is INS v. St. Cyr, in which the Court held that the definition of “aggravated offense” could not be applied retroactively, giving it implications for migratory status not provided for at the time of the criminal convictions to the verdicts handed down prior to the 1996 immigration law. In Zadvydas et al. v. Davis, the Court held that the period for review of the decision to deprive a person of liberty when an order to deport the person was issued but not carried out cannot exceed six months.
41. The petitioners explained to the Commission that the decisions of the Supreme Court have no effect on the cases of the alleged victims, as the factual predicates are different.
42. The State indicated that the petition is inadmissible because the American Declaration is not binding, domestic remedies were not exhausted, and no facts are described that would make out a violation of the American Declaration, since the alleged victims were expelled, and so are not in the United States. In addition, the State considers that the alleged victims did not exhaust domestic remedies before the federal courts, whose decisions are appealable to the Supreme Court of Justice.
43. With respect to the rights alleged to have been violated, the State argues that the right to a family and the related rights do not have greater weight than the legitimate responsibility of the State to guarantee the well-being and security of the citizens. It adds that the protection of the family does not become a right to liberty in a country in which one is not a citizen, and when the person is acting in violation of that state’s laws. It also indicates that Article XXV of the American Declaration does not include detention and deportation related to immigration proceedings, since they are civil enforcement measures. The State also argues that deportation is not a punishment for past crimes, but a civil consequence of not having the right to remain in the United States for having violated the country’s immigration laws. The State also adduces that the administrative and judicial review procedures are sufficient to ensure and protect the rights established at Articles XVIII and XXV of the American Declaration. In addition, the State indicates that migrants deprived of liberty can challenge the decision regarding their detention before the administrative and judicial authorities.
44. The Commission declared the petition inadmissible. In its report, it begins by reaffirming that the American Declaration constitutes a source of international obligations for the member states of the Organization of American States (OAS). The Commission considers that the petitioners did not exhaust domestic remedies or that the petition did not establish the acts constitute a violation of the rights protected by the American Convention.
45. In its considerations, the Commission indicates that it agrees with the petitioners that the administrative and judicial appeal of the characterization of given conduct as “aggravated offense” does not constitute an effective remedy. Nonetheless, it is noted, the petitioner should have recurred to the habeas corpus jurisdiction of the federal district courts for review of the administrative actions. In addition, the decisions of the United States Supreme Court mentioned above establish that the bar on pursuing a remedy should not be applied retroactively to the convictions that predate the entry into force of the immigration statute. These decisions also establish a maximum of six months for review of the decision to deprive of liberty a person whose expulsion has not been carried out. Accordingly, the Commission considers that the alleged victims failed to exhaust domestic remedies by seeking habeas corpus relief from the federal courts.
Personal liberty and the right to protection from arbitrary arrest
Report Nº 7/02, admissibility of Petition 11.661
46. On February 27, 2002, the Commission approved admissibility report No. 7/02. The facts of the case can be summarized as follows: Mr. Manickavasagam Suresh, a citizen of Sri Lanka, arrived in Canada in 1990, where his refugee status was recognized. The next year, Mr. Suresh filed for permanent residence, which was not granted because, in the course of those procedures, the State began deportation proceedings, arguing that he was inadmissible in Canada because of security considerations. The basis for this position was the accusation that Mr. Suresh was a member of the organization Liberation Tigers of Tamil Eelam, considered a terrorist organization by the Government of Canada, and that he was responsible for fund-raising for this group. Mr. Suresh alleged that if deported he would be tortured in Sri Lanka. The deportation decision was appealed to the Supreme Court of Canada, which concluded that the deportation of a person to a country where he runs a risk of being tortured is unconstitutional. The Court determined, moreover, that Mr. Suresh’s right to due process had been violated, thus the case was remanded to the lower court for a new hearing to decide on deportation.
47. The petition was submitted to the Commission in July 1996 by a Canadian law firm. The petitioners allege that Mr. Suresh was detained arbitrarily because he remained deprived of liberty for two years and five months, and had no access to a judicial procedure to challenge the detention since he did not have the immigration status of permanent resident, with which he received discriminatory treatment in relation to Canadian citizens who are deprived of liberty. The petitioners argue that while foreigners don’t have all the rights of Canadian citizens, such as the right to enter and remain in the country, the right to vote, and the right to participate in government, they do enjoy all other human rights, such as the right to due process and to a judicial review to challenge a deprivation of liberty. On denying these rights to foreigners, Canada is violating its duty to guarantee equal protection before the law. They add that the grounds for deportation is “alleged membership” in a terrorist organization, which is a violation of the right of association (Article XXII), the right of petition (Article XXIV), and the right to protection from arbitrary arrest (Article XXV) of the American Declaration.
48. The State alleges that the detention is part of the process of deportation and that its prolongation was due in part to the petitioner’s actions. The Canadian Immigration Act determines that foreigners are not admissible if involved in espionage, subversion of democratic governments, or terrorism. In addition, the law authorizes the detention of foreigners who are facing deportation proceedings in order to guarantee the effectiveness of the measure, if it is determined that they are not admissible and when deemed necessary to protect Canadian society from persons considered dangerous. The State explained that the courts had confirmed the constitutionality of the process of deportation and deprivation of liberty, and that the procedure before the Supreme Court took the place of the habeas corpus remedy.
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Table of
Contents | Next ] [1] The Declaration of Montrouis called “A New Vision of the OAS,” adopted by the General Assembly in Haiti in 1995, noted that as the result of growing interdependence and economic integration, migrant workers and their families must be addressed through approaches based on solidarity among member states, and with full respect for the dignity and rights of those persons. [2] IACHR, Annual Reports, section on migrant workers. See <http://www.cidh.org>. [3] Inter-American Court of Human Rights, Advisory Opinion (OC-18), <http://www.corteidh.or.cr/ SERIE_A/Series_a_18_esp.doc>. [4] See Chapter IV, Annual Report, Rapporteurship on Migrant Workers and Their Families 2002, <http://www.cidh.org/annualrep/2002eng/chap.6.htm>. [5] Judgment of July 29, 1988, paras. 56-67, citing Velásquez Rodríguez case, Preliminary Objections, supra 23, para. 88.
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