TOR017 – SAMM Project: Manual on Labour Migration Admission & Post-Admission Policies- Guidance for SADC countries of destination

Terms of Reference

“Manual on Labour Migration Admission & Post-Admission Policies- Guidance for SADC countries of destination”

November 2021

I. Introduction

The European Union is supporting the implementation of the Southern African Migration Management (SAMM) Project. This four-year (2020-2023) project is designed to improve migration management in the Southern African and Indian Ocean region. The SAMM Project is a UN Multi-Agency programme composed of the International Labour Organization (ILO), the International Organisation for Migration (IOM), the United Nations High Commissioner for Refugees (UNHCR) and the United Nations Office on Drugs and Crime (UNODC).

SAMM’s overall objective is to improve migration management in the Southern African and Indian Ocean region guided by, and contributing to the realisation of, the 2030 Development Agenda (goals 8 and 10).

It is comprised of two main project components: 1. Labour Migration; and 2. Mixed Migration. The first component supports the implementation of the UN Global Compact on Safe, Orderly and Regular Migration (GCM) and the second one the application of the UN Global Compact on Refugees (GCR), as well as of the GCM.

Target countries: Angola, Botswana, Comoros, Democratic Republic of the Congo (DRC), Eswatini, Lesotho, Madagascar, Malawi, Mauritius, Mozambique, Namibia, Seychelles, South Africa, Tanzania, Zambia and Zimbabwe.

Three Regional Economic Communities (RECs) are key stakeholders in SAMM’s implementation: i) the Common Market for Eastern and Southern Africa (COMESA), ii) the Indian Ocean Commission (IOC), and iii) the Southern African Development Community (SADC). One of SAMM’s key project priorities is to support the formulation and realisation of its Labour Migration (LM) and Mixed Migration (MM) Frameworks. Indeed, the SAMM partners offer technical support to the implementation at the national level of the following six Labour Migration-related Policy Frameworks and three Mixed Migration-related Policy Frameworks:

Six Labour Migration-related or Labour Migration-specific Policy Frameworks:

• SADC Employment and Labour Policy Framework (2020-2030)
• SADC Labour Migration Policy Framework and its 2020-2025 Action Plan;
• SADC Protocol on Facilitation of Movement of Persons;
• SADC Code on Social Security and SADC Guidelines on the Portability of Social Security Benefits;
• SADC Regional Qualifications Framework;
• COMESA Protocol on Free Movement of Persons, Labour, Services, the Right of Establishment and Residence.

Three Mixed Migration-related Policy Frameworks:

• SADC Regional Policy Framework on the Management of Refugees and Asylum-Seekers;
• SADC Regional Strategy to combat Illegal Migration, Smuggling of Migrants and Trafficking in Persons;
• COMESA Protocol on the Gradual Relaxation and Eventual Elimination of Visa Requirements.

At the same time, the SAMM project is also providing technical support to the SADC Secretariat on the establishment of the SADC Labour Market Observatory that will comprise an important section on labour migration statistics. SADC Member States’ contribution to the SADC Labour Market Observatory will require rapid improvement of the collection and analysis of labour migration statistics and instituting labour market information systems at the national level.

SAMM Labour Migration thematic areas include:

1. Gender-responsive labour migration policies and/or strategies regulating labour migration at national level contributing to the implementation of SADC’s Labour Migration Action Plan;
2. International labour standards and national legislation on the protection of migrant workers, as well as advocacy on the contribution of migrant workers to development;
3. Bilateral labour migration agreements (BLMAs) across the region and with third countries;
4. Fair recruitment and decent employment for migrant workers including regulatory legislation on Private Employment Agencies (PEAs), and strengthening of Public Employment Services’ (PES) capacity;
5. Social Security Portability of Benefits for migrant workers at the national level through the SADC Code on Social Security and the piloting of SADC Guidelines on the Portability of Social Security Benefits;
6. Skills matching, skills profiling and recognition of qualifications of migrant workers at national and bilateral level, as well as support to SADC Qualifications Framework;
7. Labour migration statistics (indicators, module, inclusion in labour market information systems, etc.) and the support on the establishment of SADC’s Labour Market Observatory.

Work under this consultancy is linked to SAMM’s Workplan as follows:

Result/output 1.1.2. National-level labour migration strategies and/or policies, regulatory frameworks and implementation plans formulated, consolidated and implemented.**

Activity 1.1.1.1. Stocktaking of Labour Migration policies component areas of work (Gender and LM, Social protection, Skills, Coherence between Labour Migration and Employment Policies, etc). Country profiles, RECs’ profiles.

II. Context at the SADC level

Employment-based immigration comprises the largest number of international migration flows.

Indeed, migration today is largely linked to the search for a job and better wages. Even if employment is not the primary driver, it usually features in the migration process at some point. Labour migration in Africa is largely characterized by low-skilled movements to regional labour markets on the continent for employment and economic opportunities. Indeed, more than 80% of labour migration flows of African nationals take place within the African continent[1]. Demand in economic sectors such as agriculture, fishing, mining and construction as well as services such as domestic work, health care, cleaning, restaurants and hotels, and retail trade are significant drivers of labour mobility to regions within the continent.

The Southern African region has had a long history of intra-regional migration. All Member States of the Southern Africa Development Community (SADC) are involved in labour migration flows as countries of origin, transit, or destination and often they play the three roles at the same time. In the past ten years, a significant spike has been recorded with 3 million more migrants in the region. Data from UNDESA shows that Angola, the Democratic Republic of Congo (DRC), South Africa, and Tanzania have accounted for 96% of this increase and count with 81% of the total migrant stock in the region. Other countries remain quite stable except for Comoros, which saw a marginal decline. UNDESA data also indicates that there has been a significant increase in the migration of women attaining a level of 47% in the SADC region. Member States such as Comoros, DRC, Malawi, Mozambique, and Tanzania reckon more women than men migrant workers[2].

Table 1: Breakdown by Sex of Migrant Stock in Southern Africa, 2019

Country Male Female % Female

Angola 341,719 327,760 49.0

Botswana 62,943 47,653 43.1

Comoros 6,047 6,457 51.6

DRC 463,954 499,879 51.9

Eswatini 16,582 15,728 48.7

Lesotho 3,751 3,177 45.9

Madagascar 19,897 15,037 44.2

Malawi 117,932 129,720 52.4

Mauritius 15,979 12,870 44.6

Mozambique 161,731 172,934 51.7

Namibia 57,938 49,623 46.1

Seychelles 9,049 3,877 30.0

South Africa 2,350,362 1,873,894 44.4

Tanzania 251,424 257,742 50.6

Zambia 86,098 84,151 49.4

Zimbabwe 233,652 177,605 43.2

Source: UN DESA, International Migrant Stock by Origin and Destination 2019 Update, Tables 2-3.

It is also interesting to note that Botswana, Namibia, Seychelles and Mauritius have a significantly high proportion of migrant workers as a percentage of their total population. The latter two countries (Seychelles and Mauritius) count with a substantial number of the migrants originating from Madagascar and other SADC neighboring countries, but others from outside the SADC region, notably South Asia.

Progress has been made in fostering improved labour migration governance, notably at the SADC level with the adoption in 2014 of SADC’s Labour Migration Policy Framework. The SADC Labour Migration Policy Framework provides an important sub-regional framework and mechanism for cooperation between SADC Member States in the development of national labour migration policies and the management of labour migration. The SADC Labour Migration Action Plan (2016-2019) called on all Member States to have a National Labour Migration Policy in place by 2020.

The Ministers of Employment of the Southern African Development Community (SADC) adopted a new SADC Labour Migration Action Plan (LMAP) for the period 2020-2025 during their March 2020 meeting.

The LMAP has three inter-related strategic objectives as follows:

i) Strategic Objective 1: To strengthen labour migration policies and regulatory systems for better labour migration governance.

ii) Strategic Objective 2: To protect migrant workers’ rights and improve advocacy and awareness of their contribution to development and regional integration.

iii) Strategic Objective 3: To enhance participation of migrant workers in socio-economic development processes in both receiving and sending countries.

The Labour Migration Action Plan (2020-2025) re-emphasizes the call for all Member States to develop comprehensive national labour migration policies and while no specific timeline is attached, it is assumed that it has to be done within the framework of the LMAP and 2025 would be the target year. Indeed, the most recent LMAP calls to 1.2.1 “Undertake a scoping study of existing labour migration policies and laws within SADC Member States to assess their compatibility with regional efforts on migration governance”; and “1.2.3. “Develop rights based, gender sensitive national labour migration policies / instruments in at least 10 Member States.

The LMAP renews the commitment of all SADC member states to put national labour migration policies in place. To date, only four Member States (Lesotho, Namibia, Seychelles and Zimbabwe) have comprehensive national labour migration policies, whereas other four Member States are at various stages of development: Botswana, Eswatini, Malawi, and South Africa. At the same time, five additional SADC Member States (Comoros, the DRC, Madagascar, Mozambique and Zambia) recently expressed their interest to develop a labour migration policy.

III. Objectives and Outputs

The objective of the consultancy is to produce a Manual on international labour migration policies and practices related to migrant workers’ admissions and post-admission schemes in countries of destination[3]. The manual will include information on challenges, opportunities and best practices from all over the world and will include information on how they could be providing guidance to main SADC countries of destination. As much as possible, it will include information on what are the advantages and drawbacks of the different policies and tools. It will also mention monitoring mechanisms since how admission and post-admission policies are implemented is as important as the thematic areas they cover. What reach and power do these policies actually have (f.e. how are bilateral agreements enforced, are they designed as active programs, or as visibility stunts between a powerful destination country and an origin country that get signed and put in a drawer)? How much power do the relevant institutions have to enforce policies, etc.

The manual will also take into consideration gender aspects, and will include a rights-based focus and consider the need to ensure inclusion of tripartism and social dialogue among World of Work actors (Ministries of Labour, Employers and Workers’ Organisations) throughout. Each policy and practice covered in the manual will include two to three best practice examples.

The outcome of the consultancy will contribute to providing policy advice to main countries of destination among SADC Member States on labour migration governance. It will also mention the impact of major regional and subregional policy frameworks on admission and post-admission policies and tools. The review should examine the following types of policies and tools:

Admission Policies:

• Permanent Migration – How should it be determined and what are the skill levels it should apply to? How many migrant workers should enter the country through it? Should the country create paths to permanent residence for migrants with skills recognized as necessary for long-term development, and for which skills transfer to a local worker is not feasible in the short or medium term? What are the existing systems and do they apply to specific economic sectors and occupations? Explain the Points-based system and the fast-track visa facilitation system? Does it aim to attract and retain only highly-skilled or also low-skilled migrant workers? Please explain if women migrant workers are benefiting equally from all the above? If not, please explain the reasons behind. What are the types of visas offered by some countries (distinctions by duration: permanent or temporary) and/or by skill: between professionals and manual workers, etc.
• Temporary labour migration opportunities –**schemes**- Types of temporary labour migration schemes that should be considered? In which sectors and occupations and how many migrant workers should benefit from these types of programmes? Please explain if women migrant workers are benefiting equally from all the above? If not, please explain the reasons behind.
• Family reunification– When should a migrant be permitted to bring in his/her family members?
• Work-study visas –**Programmes**- When should a country introduce work-study visas or facilitate access to work visas following graduation from a national higher-education institution in order to retain skills? TVET institutions here, e.g. in high-demand sectors/occupations? Internships and apprenticeships? Lifelong learning opportunities?
• Fair Recruitment Policies– Are there informal recruiters present in the labour market? How important is their presence? Does the country count with national legislation to monitor and regulate PEAs? If so, which of the following strategies does it include? Do PEAs charge costs and fees? If so, are they considered abusive? Is the PES also permitted to recruit migrant workers ?
• Other?

Tools to be considered in determining Admission Policies, particularly in assessing and regulating foreign labour demand and supply through:

• Catalogues of occupations difficult to cover – When should a country decide to put together a List of occupations of difficult coverage and with what purpose? Should the list be determined through tripartite consensus? Should the Catalogue or List determine quotas and other labour migration schemes? South Africa counts with a national scarce skills list. Should the catalogues be aligned to the country’s social and economic priority goals?
• Quotas – (When and How) should a country determine quotas for foreign-born workers? Which sectors, occupations or industries should be included? Should they be based on close labour market monitoring rather than quotas for individual employers? exceptions should be made and if yes, under what conditions?
• Labour market needs assessments identifying existing demand and supply of migrant workers – How should labour market needs be determined in the country? Should countries establish labour market needs assessments for periodic, objective labour market analyses and should they take into account gender issues and include: sectoral, occupational and regional dimensions of labour shortages and their causes? Should they consider relevant issues of labour supply; shortages of skilled workers including in the public, health and education sectors; long-term impact of demographic trends, especially ageing and population growth, and on the demand for and supply of labour? Should labour market needs assessments be part of a national labour market information system (LMIS)?
• Labour market or Vacancy tests – What is the ideal number of days (waiting period) that should be considered in a labour market test? Some countries such as Seychelles include a 3-day period which is considered as unfair to national workers. National trade unions consider it too advantageous to employers. Would extending the mandatory labour market testing period to one month and applying it to all positions, (with the exception of a limited list of essential high-skilled occupations with established shortages) be fair to both national and foreign workers?
• Labour market information systems – What should the role of labour market information systems be? Some countries combine information from LMIS with information from labour market stakeholders and dedicated assessments. While job matching isn’t a primary function of LMIS, many countries aim to provide this service through the LMIS as well. Given the limited quality of existing labour market data in most countries, is this the way to go? What possibilities would be useful within SADC?

Post-admission Policies-

• Regularization schemes – When and how many migrant workers should be regularized and in which sectors and occupations? What are the advantages and drawbacks of regularization schemes?
• Addressing discrimination – How to ensure the respect for the principles of equality of opportunity and treatment between national and migrant workers, particularly in terms of access to employment and fair working conditions? How can a country avoid a “racerace to the bottom^[4]” or “social dumping^[5]” effects in its labour market, including xenophobia/afrophobia? What are lessons learned and good practices from the region in the area of tackling discrimination, xenophobia/afrophobia and unequal opportunity and treatment?
• Labour market integration– What should a labour market integration policy cover? Should all migrants benefit or have the possibility of learning a local language, get their educational and professional skills validated/recognised and receive adequate training? What about the issue of reskilling/upskilling opportunities and skills matching – perhaps around migrant workers in occupations/sectors that are declining in demand (e.g. mining) and whose skills could be utilized in other sectors/occupations (in the country of origin or destination)?
• Family reunification – When should a migrant be permitted to bring in his/her family members?
• Skills recognition schemes– What is the role of the national skills’ system to facilitate the recognition and verification of migrant workers’ skills and qualifications at various levels? What is the role of the regional (SADC) qualifications framework? Should recognition be established through social dialogue involving governments, employers’ and workers’ organizations and education and training institutions? Should the system include both academic and professional recognition[6] and TVET? Should skills recognition be conducted by measuring skills against agreed labour competency or occupational standards? What are the different methods that apply for the validation and recognition of prior learning, respectively, academic education, vocational education, on-the-job learning (could include internships and apprenticeships, which could play a key role in tackling youth unemployment in particular) and work experience[7]? What about the issue of knowledge exchange working with diaspora networks between countries of origin and destination
• Social Security portability of benefits – Why should a country prefer unilateral, bilateral or multilateral social security provisions to ensure coverage and portability of benefits for migrant workers? Should countries sign social security bilateral agreements (R. 167 as a model agreement)? If so, how is it effectively implemented and monitored? What are the main legal obstacles impeding extending social protection coverage to migrant workers (e.g. the principle of territoriality and the principle of nationality)? Do migrant workers face administrative, practical, and organizational obstacles to the portability of social security benefits? When should the national Social Security Institute be able to apply the following?

o Principle of Maintenance of acquired rights and the provision of benefits abroad

o Principle of Maintenance of rights in course of acquisition

• Labour inspection – Is the labour inspection service effective in ensuring fair working conditions and occupational Safety and Health protection of migrant workers?

Services and tools to be considered in implementing Post-Admission Policies:

• Work permits – When should a country introduce different durations of temporary work permits adapted to the needs of the post, such as seasonal worker schemes (duration under 6 months), or longer-term work permits (for example, duration of 5 years)?; Are there any limitation for renewal of work permits especially in specific sectors/occupations?
• Contracts – Should a country introduce probation periods for fixed-term contracts of migrant workers with clear regulations for terminating a contract during this period?; What are the risks involved for Migrant Workers upon termination of their contract? Can they apply for another position, in another sector depending on the reasons their contract got terminated?
• Change of employers – What criteria should a country consider to allow migrant workers to change employers? Should the country do it in cases where an employer has failed to renew the migrant worker’s work permit, failed to pay wages consistently, or dismissed the worker without adequate justification?
• Other? National authorities involved in the implementation process of those policies. Is there an existing one-stop shop body/institution for Migrant Workers or are there several departments in various ministries dealing with different aspects of those policies in place?

IV. Methodology

The manual should not be longer than 150 pages. The methodology will include: a desk review of the literature available on the subject. The SAMM project will provide the consultant with information available from SADC countries.

A minimum number of interviews with representatives of Government, Workers and employers but also NGOs if possible, as well as with UN Agencies dealing with Migration issues. Interviews will identify issues will be included focusing on the main countries of destination in SADC.

The manual will be divided in two main chapters (Admission and Post-Admission policies). Each chapter will be sub-divided in sections covering each of the thematic areas and tools mentioned above.

V. Qualifications and Experience Required

Education: Advanced university degree in Skills, Development Studies, Economics, Migration studies, Public Policy, Management, or other relevant Social Sciences degree.

Experience: At least 5 years of demonstrated experience and knowledge on labour migration policies, including demonstrable knowledge of mainstreaming gender and non-discrimination, particularly in SADC countries as well as working with COMESA, IOC. Country-level experience in at least some of the SADC countries is an asset.

Languages: Excellent command of English. Working knowledge of French and/or Portuguese is an advantage. Excellent writing skills is a requirement.

Skills: Applied Research, Interpersonal, Organizational, cross-cultural communications;

Computer Literate: Microsoft Office, PowerPoint, Social Science Tools

VI. Terms of Contract for Consultant

The service provider will be responsible for all expected outputs mentioned in the terms of reference.

Daily fees will represent 400 USD per day.

Fees will be determined depending on the knowledge and experience by the consultant(s) and in SADC countries on the technical area under study: skills recognition of migrant workers and labour migration governance.

VII. Timeline and payment breakdown

The consultant will work for a total of 62.5 working days.

Starting date: 15^th January, 2022 End date: 31^st April, 2022

Total agreed consultant(s)’ fees represent 25,000 US dollars based on a daily fee of 400 dollars $/day.

Payments will be disbursed as follows:

• 8,000 US dollars upon the completion of the 1^st draft- no later than 31st March, 2022 to the satisfaction of the ILO.
• 8,000 US dollars upon the completion of the revised version of the manual (including best practice examples, etc.) no later than 31^st April, 2022 to the satisfaction of the ILO.
• 9,000 US dollars upon the completion of the final version of the manual (including table of contents, bibliography, list of acronyms, list of tables and graphics, etc.) no later than 30^th May, 2022 to the satisfaction of the ILO.

VIII. Supervision and Reporting

The service provider will report to Ms. Gloria Moreno-Fontes, Chief Technical Advisor of the Southern Africa Migration Management (SAMM) project, who will coordinate with MIGRANT in HQ and share it broadly with other ILO Departments.

The ILO will liaise with the IOM, UNHCR and UNODC (where pertinent) and be in charge of the overall supervision for incorporating inputs and comments and validation of the work.

[1] Flahaux, Marie-Laurence, De Hass, Hein: African migration: trends, patterns, drivers, Comparative Migration Studies, 2016.

[2] ILO: Labour Migration in the Southern African Region–A Stocktaking Report, 2022. p. 7. Forthcoming publication. Quote from UN DESA International Migrant Stock by Origin and Destination 2019 Update.

[3] A separate report will cover a similar reviews of labour migration policies in countries of origin.

[4] The “race to the bottom” approach refers to a competitive situation where a company, state, or nation attempts to undercut the competition’s prices by sacrificing quality standards or worker safety (often defying regulation), or reducing labor costs.

[5] “Social dumping” is a practice of employers to use ‘cheaper’ labour than is usually available at their site of production.

[6] Academic recognition allows for the continuation of studies at the appropriate level. Professional recognition provides the opportunity to access a particular job, and practice professional skills that might have been acquired abroad. Professional recognition covers both regulated and non-regulated professions.

[7] Different methods for assessment and recognition of formal learning apply across countries. Some approaches are based on the length of education/training (quantitative), and others on content (qualitative**)**. Concerning the latter, learning outcomes are playing an increasingly important role in the development of national and overarching qualifications systems and frameworks. Where learning outcomes are taken into account for the evaluation of a foreign qualification, the recognition procedure may focus more on results reached and competences obtained, rather than only on input criteria such as the programme workload and content. However, documentation on the qualification does not always contain clear listings of learning outcomes and recognition bodies may have to deduce the output of a qualification from contextual information such as its place in the national education system or qualifications framework, its subject matter content and duration.

How to apply

IX. Application

Interested candidates are invited to submit their applications by 30^th November, 2021 to the International Labour Organization (samm-project@ilo.org) and copying: ngoveni@ilo.org. Applicants should include the following documentation:

• CV/resume;
• Cover letter;
• A short note providing a brief overview of how the assignment will be approached, the methodology to be used and giving an indication of the consultant’s capacity to undertake the assignment;
• 3 weblinks to latest labour migration articles/ reports or attach 3 writing samples on subjects directly related to the scope of this consultancy;
• 3 references with contact details;