A/73/178/Rev.1
the courts without a prior administrative appeal. In such cas es, migrants have access
to administrative courts, sometimes with the right of appeal to a higher court. Some
systems provide for the possibility of access to the high court. Italy has recently
established a special section on immigration, international protection and free
movement of citizens.
31. Access to a judicial review of the detention of migrants and asylum seekers is
also impeded by the elimination of procedural safeguards such as ex officio judicial
reviews of detention orders and the poor prospects for a successful appeal against
such orders while the person is in a detention centre prior to removal. 26
32. In recent years, some States have adopted reforms affecting the independence
and effectiveness of the bodies that review negative asylum decisi ons. For example,
in Greece, following the adoption of the agreement between the European Union and
Turkey on 18 March 2016, the composition of the review body was amended,
affecting the way in which it rules on appeals against decisions deeming applicatio ns
for asylum inadmissible based on the “safe third country” concept. Derogations from
the general rules of administrative procedures may also occur in the bodies that
review asylum applications, to the detriment of applicants. For example, several
countries have limited the range of circumstances in which a review is available to
asylum seekers in order to expedite proceedings. 27
F.
Firewall protections
33. “Firewalls” establish a strict and real separation between immigration
enforcement and public services, meaning that immigration authorities cannot have
access to information regarding the migration status of visitors to public services, and
that the institutions responsible for providing such services are not required to
investigate or share information on the migration status of their users. 28 These
institutions include service providers in the fields of education, health, social security,
social assistance and labour protection, as well as the police and the judicial system.
As the only mechanisms that allow migrants to exercise and enjoy their human rights
without fear of being reported to the immigration authorities, “firewalls” are an
inescapable consequence of the State’s obligation to protect all persons under its
jurisdiction against discrimination, in accordance with international human rights
norms and standards. 29
34. The establishment of “firewall” protections is key to ensuring migrants’ access
to justice. One of the reasons for their difficulty in having access to an effective
remedy before the courts is their fear that their migration status will be discovered
during the proceedings and that they will be detained and subsequently deported. 30 In
this regard, “firewalls” allow migrants who are in an irregular situation and are afraid
of being discovered and deported, or those who are in a precarious legal situation and
afraid of ending up in an irregular situation, to report offences as either vi ctims or
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28
29
30
18-15902
Submission by University of Texas School of Law, Human Rights and Im migration Clinics,
Locking up Justice.
Submission by the International Commission of Jurists (ICJ)/European Council on Refugees and
Exiles (ECRE).
François Crépeau and Bethany Hastie, “The Case for ‘Firewall’ Protections for Irregular
Migrants: Safeguarding Fundamental Rights”, European Journal of Migration and Law, vol. 17,
2015, p. 165.
Council of Europe, European Commission against Racism and Intolerance (ECRI), General Policy
Recommendation No. 16 on Safeguarding Irregularly Present Migrants from Discrimination,
adopted on 16 March 2016 (2016), 16.
A/HRC/26/35, paras. 19, 57, 100 and 103.
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