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factor in access to justice; individuals whose situation is irregular face greater barriers
to access. 47
48. Migrants who are temporary workers also face hindrances in gaining access to
justice, given that the return to their countries of origin stipulated by temporary labour
migration programmes creates a geographical barrier to claiming their rights. The
2014 legislation adopted by the State of California (United States) provides an
example of good practice in strengthening migrant protection in the area of
recruitment. The law requires the employer to utilize only recruitment agencies
registered in the state, prohibits the collection of recruitment fees from workers and
stipulates that workers must be given contracts at the time of recruitment. This makes
employers more accountable for labour abuses. 48
49. Other forms of abuse endured by migrants include confiscation of their
documents and denial of the right to an interpreter. 49 They are also subject to mass
expulsions following visa raids, as has been the case in Kuwait, Oman, Saudi Arabia
and United Arab Emirates. However, destination States do not investigate the reasons
and circumstances leading to the irregular situation or establish to what extent
sponsorship and recruitment agencies may be responsible. 50
50. In general, men migrant workers are more likely to bring claims in court than
women migrant workers. This gender gap, which is larger in rural areas, is attributable
mainly to a lower level of empowerment among women, who also have limited access
to information about their rights and face time constraints, part icularly in the case of
domestic workers. Indigenous migrants also have very limited access to labour courts,
owing generally to linguistic and cultural barriers and to public institutions ’ lack of
awareness and knowledge of the specificities of indigenous peoples. Another
contributing factor is the perception among indigenous migrants that the judicial
system is alien to their own traditional conflict resolution methods. 51
51. Family members of migrants who have disappeared on the migratory route also
face challenges in pursuing justice. In Mexico, for example, cases are rarely reported,
and it is impossible, without a mechanism for coordinating response between Mexico
and the countries of origin of missing migrants, to assess the extent of the
phenomenon, although it is believed to be massive. The institutional shortcomings
that prevent family members from gaining access to justice and obtaining reparation
include a lack of coordination between countries of origin, transit and destination;
delays in conducting investigations and searches for missing persons, and a lack of
transnational investigations. In response, family members of migrants who have gone
missing in El Salvador, Guatemala, Honduras, Mexico and Nicaragua have formed
committees. Family members also suffer the traumatic consequences of a lack of due
diligence in the forensic identification of their loved ones. 52
52. Migrants are also victims of hate crimes because of racial discrimination,
xenophobia and other reasons. Such incidents are generally not reported out of fear
and distrust of the police, which hinders migrants’ access to justice. 53
53. Migrants who are victims of trafficking are deeply distrustful of the justice
system, which they perceive as corrupt. They are also afraid of the police. As a result,
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49
50
51
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18-15902
Submission by ILO and the judicial branch of the Government of Costa Rica.
Submission by the International Labour Recruitment Working Group.
Submission by University of Texas School of Law, Human Rights an d Immigration Clinics,
Locking up Justice.
Submission by Migrant Forum Asia.
Submission by ILO and the judicial branch of the Government of Costa Rica.
Submission by the Mesa de Coordinación Transfronteriza “Migraciones y Género” (cross-border
coordination bureau “migration and gender”).
Submission by the European Union Agency for Fundamental Rights.
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