Review of National Policy, Legislative and Regulatory Frameworks, and Practice: A Baseline Study for Kenya at International Labour Organization

The consultancy entitled, “The National Policy, Legislative and Regulatory Frameworks and Practice Review”, aims to establish baseline situations in four countries in East Africa - Kenya, Uganda, Ethiopia and Sudan - in the area of relevant policy, legislative and regulatory frameworks and current practice in terms of implementation in relation to the access of refugees to the labour markets, employment, livelihood and training opportunities, including self-employment and business development. This will provide ILO PROSPECTS programme teams a clear understanding of the current status (or not) of these frameworks and how they are being applied (or not).

Before the Partnership can begin planning its interventions around policy advocacy and supporting government and other efforts to develop or reform relevant frameworks on access to education and training, active labour market programmes, the right to work and rights at work, including social security and protection and freedom of association, an understanding of the current political, legal, and regulatory environment in regards to those with refugee status is required for each of the targeted countries.

Importantly, it will also provide a comparison on national policies and legislation against what actually happens in practice thereby revealing the capacities and abilities of government ministries, institutions, social partners and non-government actors to enact and implement and inform further capacity-building interventions.

The consultant/service provider, in close collaboration with and under the technical supervision of IMPACT Initiatives, an NGO with expertise in designing and conducting research for actors in the humanitarian and development sector, will be required to:

• Identify relevant policies, legislation and regulations and analyse them in regards to the refugees’ access to employment, livelihood, and training opportunities, and to rights at work.
• Identify and review literature and secondary data sources on policy, legislation and regulations, and assess their actual implementation on the ground, thereby avoiding duplication of existing legal reviews and studies and leveraging these sources where relevant.
• Conduct a Gap Analysis against the assessment framework that highlights implementation gaps, and needs and expectations.
• Conduct key informant interviews of identified national and international actors to assess the practical application of policy, legislative and regulatory frameworks and identify challenges that will need to be addressed.
• Conduct KI interviews with refugees and host communities, and also focus group discussions, to better assess knowledge and understanding of these policy, legislative and regulatory frameworks.
• Conduct validation exercises in Sudan to ensure the establishment of key recommendations going forward in terms of identifying gaps and challenges that can be addressed through the PROSPECTS and related programmes, including policy advocacy and supporting either policy, legislation and regulatory development and/or reform as appropriate.
• Develop the Sudan report that summarizes the main findings and possible recommendations for the PROSPECTS programme at the country level.

The consultant/service provider will be expected to conduct these activities only for Sudan, however, it is important to note the research and subsequent report will be expected to follow a predetermined assessment framework that will allow for their findings to be comparable against other countries identified for this study. The findings from all countries will be eventually aggregated into a global-level analysis report. Further details are outlined in the methodology section below.

Scope

The scope of work would identify, examine and analyse policy, legislation and regulations in so far as these pertain to the access of refugees to labour markets, employment and self-employment (formal and informal), training, business development and other income-generating activities. It would also examine and allow for the comparison on identified national and regional policies and legislation, against 8 the ability and capacity of government ministries, institutions, social partners and nongovernment actors to enact and implement.

Areas of focus should include:

• Current refugee, asylum and immigration policy and legislation and relevant secondary legislation and regulations, with particular focus on issues relevant to access to work (formal and informal), including but not limited to the right to work, to set up business, legal identity, access to mobile services in the context of digital learning and economy, access to justice including grievance mechanisms (to protect rights at work), freedom of association, freedom of movement, access to education and training, employment services, limitations on sectors and areas of work available to refugees, etc. This analysis will also consider mechanisms in place to govern the access of refugees to labour markets and economic opportunities, such as having to apply for work permits and the regulations applying to these systems, including quotas. In addition, it will also consider naturalisation pathways open to refugees through immigration/asylum policies and regulations.
• The baselines will also examine the issue of recognition of education, vocational, academic and professional qualifications of refugees and how this process is managed, if at all, and the onward principle of refugees being able, for example, to practice liberal professions.
• Where governments have established and apply the right to work for refugees, this review should examine how this works in practice, including any barriers that may affect the application of this right, for example, bureaucratic hurdles, lack of information, limited capacity of government institutions to support access to this right, behaviour and attitude of employers and national workers, etc.
• The same will apply for the right of refugees to set up businesses or cooperatives and access to financial services, looking closely at challenges they may face in accessing this right, legal and bureaucratic obstacles, lack of understanding of services they may be able to obtain, etc.
• Freedom of movement and association are two fundamental principles that support the right to work and rights at works and it will be important to examine how these rights are applied if at all and whether refugees are appropriately informed. Freedom of association can apply to refugees being able to join trade unions or businesses/self-employed being able to join sectoral and trade associations, including cooperatives. The other part of this analysis would examine the readiness of these national bodies to accept refugees into membership, including whether their regulations are adequate and appropriate and whether information is being shared among refugees as well as these actors.
• The above show how important it will be for the assessment to cover policy and practice as these are important indicators to address impediments to comprehensive and fair implementation, and therefore critical information for planning and programme design.