Research (North Africa Legislative Review on Foreign Children and Immigration Detention)

1. ORGANIZATIONAL CONTEXT AND SCOPE

The North Africa Mixed Migration Hub (MHub) seeks a legal research consultant to complete a regional rights-based legislative review across six North African countries.1 The purpose of this two-pronged review is to support and complement two other concurrent research projects currently being commissioned by MHub. One of these research projects focuses on unaccompanied minors and separated children (UASC)2**, while the second focuses on immigration detention, both within North Africa. Therefore, this two-pronged legislative review is being commissioned to provide an overview of the legislative frameworks pertaining to** 1) foreign children and 2) immigration detention3**, in North African states. This legislative review across two themes shall feed directly into the other two respective research pieces. As such, the consultant shall work closely with MHub and the two other researchers to ensure complementarity between the research outputs. All three research pieces shall consider the interconnection between these two issues – i.e. children in immigration detention. These studies aim to provide the North Africa Mixed Migration Task Force (NAMMTF) with comprehensive and up-to-date research to inform member agencies’ operational and advocacy efforts for children on the move, and for those being held in, or at risk of, immigration detention.**

2. BACKGROUND AND RATIONALE

Human mobility in North Africa is characterized by complex movements originating within the region, as well as in other parts of Africa and the Middle East. Mixed migration flows within, through and from the region are comprised of people with a wide variety of motivations for their transnational movements. In recent years, significant upheaval in the Middle East and North Africa (MENA) region has seen larger numbers of people on the move. The scale of forced displacement within the MENA region since 2011 has been significant, particularly the large numbers of Syrian refugees fleeing the war, and refugees and migrants (particularly from sub-Saharan Africa) who had been living and working in Libya or transiting through the country, having to flee to escape the political upheaval and targeted violence in Libya. Countries in the region have seen a growth of regional migration flows, as well as inter-regional, as the North African coastline has increasingly been used as a launching point for those seeking to travel irregularly to Europe. These mixed migration flows within and through the region include significant numbers of children, both with their parents/guardians and unaccompanied. Given the dramatic rise in maritime departures and the number of high profile lethal shipwrecks, North African states have come under increasing political pressure (supported by funding and other incentives) from the European Union to reduce onward migration across the Mediterranean. At the same time, North African states are facing serious domestic and regional challenges with a growing number of ISIS-affiliated cells becoming activated within the region, resulting in a heightened concern for national security and border sovereignty.

It is within this context that governments in the region are seeking to manage larger mixed migration flows (which include children), and to expand their efforts to prevent irregular onward movement. One strategy for immobilizing these flows and managing increasing numbers of people on the move is the use of immigration detention. Immigration detention is often arbitrary – i.e. inconsistent with international standards, for an undetermined period of time, or without access to judicial review. Immigration detention is known to negatively impact mental and physical health, and this is exacerbated in cases of protracted and arbitrary detention.

Immigration detention has a harmful impact upon children. The protection of children from, and in, immigration detention is articulated broadly in international public law, most notably in refugee and human rights law, and in particular provisions relating to child rights and the protection of children.4 Nonetheless, immigration detention of children continues to be practiced around the world. An MHub study conducted in Libya in 2015 found that young migrants, refugees and asylum seekers are routinely held in arbitrary conditions in squalid, cramped conditions for months at a time without any form of due process.5 Importantly, research has found immigration detention is costly and does not deter new arrivals to the extent desired by governments. In addition to detention, children on the move face a range of other human rights violations. The rights of children are often not upheld in national laws addressing either migrants or children, due to poor and often discriminatory implementation of child rights legislation. The lack of safe routes leads children to undertake journeys along dangerous routes. Those who move through irregular channels suffer criminalization and restrictions upon their human rights. UASC in North Africa are poorly protected, have limited access to basic services, and are at risk of immigration detention, trafficking, exploitation and

physical/sexual violence. Girls face additional gendered risks in the migration process, while younger children are also particularly vulnerable.

There are a large number of international and regional human rights instruments which confer rights upon children and to which various countries in the region are signatories. In addition, there are numerous national laws and policies which also seek to protect the rights of children. There are also a range of human rights instruments, laws, policies and constitutional provisions pertaining to immigration detention, and to the rights of non-nationals. However, there are often significant gaps between the rights enshrined in global human rights instruments, their translation into national constitutions and legal provisions, and finally the way they are implemented. In order to identify the legal/policy gaps which contribute to the non-realization of rights – and ultimately to reduce these disparities - a comprehensive rights-based legislative review is needed. MHub is commissioning this review to map and assess the relevant legislative frameworks in order to improve protection responses for children and those experiencing, or at risk of, immigration detention. The Cairo-based MHub serves as a knowledge hub and secretariat for the NAMMTF, consisting of the Danish Refugee Council (DRC), the International Organization for Migration (IOM), the Office of the High Commissioner for Human Rights (OHCHR), the Regional Mixed Migration Secretariat (RMMS), Save the Children’s Regional Office for the Middle East and Eurasia, the UN High Commissioner for Refugees (UNHCR) and the United Nations Office on Drugs and Crime (UNODC). The NAMMTF promotes a human rights-based approach to ensuring the protection of people moving in mixed and complex flows to, through and from North Africa. In 2016, the NAMMTF has identified children and youth on the move as a key focus area and seeks to undertake a range of outreach, research and influencing initiatives in this field.

3. RESEARCH AIMS AND OBJECTIVES

Aim: To provide a comprehensive and up-to-date rights-based review and assessment of legislation and policy in North Africa governing: 1) foreign children and 2) immigration detention of migrants, refugees and asylum seekers, in order to improve access to protection for children and detainees and expand the use of alternatives to detention.**

Objectives:

• To review the commitments made by North African states under international law and regional human rights mechanisms related to 1) child rights and 2) immigration detention.
• To map out national level laws, regulations, policies, ministerial decrees and constitutional provisions pertaining to 1) child rights (as applicable to foreign nationals) and 2) immigration detention, and their relationship to international and regional human rights mechanisms, identifying gaps in transposition into national frameworks. To identify legal and policy reform opportunities, including documenting existing ongoing efforts for reform at the national and regional levels.

4. RESEARCH QUESTIONS

a) What are the international and regional laws and human rights mechanisms (particularly Arab and

African regional and sub-regional commitments) pertaining to 1) child rights and 2) immigration detention of non-nationals 6 (refugees, asylum seekers and migrants) that North African states 7 have signed onto, and what are the gaps in their incorporation into domestic legal and policy frameworks? To what extent have these mechanisms been engaged by rights advocates and used by lawyers to improve protection at the national level?

b) What are the national level laws, regulations, policies, ministerial decrees and constitutional provisions governing 1) child rights (as applicable to foreign nationals) and 2) immigration detention of non-nationals (refugees, asylum seekers and migrants) of all ages? 8 To what extent have these mechanisms been engaged by rights advocates and used by lawyers to improve protection at the national level? What good practices can be identified within the region and potentially replicated in other North African countries?

c) What are the opportunities for short, medium and long-term legal reform at the national and regional levels, including documenting existing ongoing efforts? .

5. RESEARCH METHODS

**The consultant shall undertake the research through a desk-based review. This review shall include legal documents from each of the countries, and may also draw upon grey literature and academic sources in its analysis.

6. DELIVERABLES

a. Detailed work plan for undertaking the research, including timeline, methodology, deliverables, contacts and resources required – to be agreed with MHub

b. Draft overall report of the assignment, including:

I. 1 matrix for children & 1 matrix for detention (1 page each) providing a tabular overview of relevant legal and policy provisions pertaining to each country

II. 6 country profiles (max. 5 pages each) responding to research questions (a) & (b)

III. 1 North Africa regional profile (max. 5 pages) responding to research questions (a) & (b)

IV. 1 legal reform briefing paper (max. 5 pages), responding to research question (c)

c. A presentation of draft outputs, to be presented to the NA MMTF via teleconference to allow for feedback before finalization of the final report Final overall outputs I, II III and IV, incorporating feedback from MHub and NAMMTF **

8. PROFILE OF THE CONSULTANT

We are looking for a consultant with the following skills and experience:

• At least 5-7 years’ experience working on legal research, legal reform, or legal advocacy
• Proven experience in conducting legal research from a human rights perspective
• Comprehensive knowledge of human rights issues in North Africa
• Ability to conduct legal research in a detailed and accurate manner
• Familiarity with policy review processes and reform strategies
• Excellent written and verbal communication skills, including the ability to convey legal terms and concepts in accessible language
• Demonstrated ability to produce high-quality written reports in English Proficiency in Arabic and/or French highly desirable **

HOW TO APPLY:

To apply, please submit the following by 15 June 2016 to HRDCairo@iom.int referring to the reference code of the CFCVs and the title.

• CV
• Cover letter addressing all of the above profile criteria (1-2 pages max)
• Technical proposal (2 pages max) including proposed methodological approach and workplan with timeline
• Financial proposal, indicating number of days required to complete deliverables and daily rate in USD. Include in your budget a quote for translation if translation services are required in order to translate legal documents into English from French and/or Arabic9
• Sample of a relevant research report, where you have conducted the research and written the final report Please direct any technical inquires to asmith@iom.int