The phases of policy formulation

The policy formulation stage of the policy cycle is the process of analysis:

To determine whether policy intervention is justified;

For generating options;
For determining a course of action to address the policy problem or opportunity.

It is arguably the most critical stage of the policy cycle. It is subdivided in its own phases that already anticipate the subsequent stages; that is, good policy formulation anticipates how the policy will be adopted and implemented, and later monitored and evaluated.

The policy formulation stage can be considered in four distinct phases (Thomas, 2001): appraisal, dialogue, assessment, and consolidation. This would rarely be a strictly linear process. It is also likely there would be multiple cycles through the phases, particularly if a substantial policy change is at stake. Figure 2 describes the actions for each phase, and the following topic provides an example of how these ideas could be applied.

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Figure 1. Key considerations in the policy formulation phases

To generate ideas during the appraisal stage, inspiration is drawn from good practices at the international level.

Example

Recruiting Immigrant Workers in OECD countries

Enquiry at the supranational level provides the opportunity to compare contexts and policy approaches and to consider elements of global good practice. This series of studies considers labour migration policies in OECD countries. It examines whether labour migration policy is effective and efficient. Each study in the series covers a specific country. Each looks at labour migration movements over which policy has direct, immediate oversight, focusing on two key areas: the characteristics of the country’s labour migration system; and the extent to which policy is responding to the needs of the domestic labour market, as well as the impact of policy on the latter.

During policy formulation, a gender analysis is necessary in order to ensure policies being formulated are gender responsive. See more in Gender-responsive, evidence and rights-based law and policy (including a checklist for formulating gender-responsive policies).

Moreover, the policy formulation stage will require an analysis of the legal implications of policy solutions with focus on some key questions:

Can we do this under the current national legal framework?

How do bilateral, regional and international frameworks guide and/or constrain us?
What changes do we need to do this?
How will we regulate roles and responsibilities, and ensure compliance?
How will protection of rights be integrated and what redress is available?

States are the primary duty bearers with regard to migrants’ rights, and are responsible for ensuring those rights are respected, protected and fulfilled. Limited time, financial, human and other resources may make it challenging to fully integrate rights principles into policy formulation. However, migration policies may be stronger if migrants’ rights, and the State’s responsibility for them are considered in the policy formulation stage (further details on migrants’ rights in Human rights of migrants: an overview and on How to incorporate rights principles in policymaking in EMM2.0's blog).

Example of policy formulation: National return and reintegration policy

Return and reintegration of migrants explores the key issues regarding return and reintegration strategy in depth, including international developments, principles and good practice. The purpose of the example below is to briefly examine this policy domain using the phases of policy formulation.

Example

Policy formulation stage in the development of a national return and reintegration policy

WHAT IS THE ISSUE THAT HAS BEEN IDENTIFIED IN STAGE 1 OF THE POLICY CYCLE (issue identification and definition)?

The return and reintegration of migrants unwilling or unable to remain in destination or transit countries is a growing trend globally. Many migrants remain stranded or find themselves in irregular situations for prolonged periods of time. In this case study, State actors have identified the need for a national policy response that provides appropriate support for its nationals to return and enjoy sustainable reintegration in their communities. The issue is playing out in the national media, with the State under criticism for not being responsive to its citizens who are facing serious difficulties abroad, with some exposed or potentially exposed to exploitation and abuse. Diplomatically, some States receiving the migrants have expressed frustration and want to see improved consular assistance to help the migrants return home more swiftly. At the same time, those migrants who have returned have been critical about the lack of social and economic opportunities when reintegrating into their communities. Some are leaving again under difficult circumstances making them vulnerable to trafficking and further exploitation.

WHAT POLICY FORMULATION STEPS NEED TO BE TAKEN?

A. APPRAISAL

What is the state of play in terms of existing policies?

Examining the existing policies and interventions that are already in place and assessing the policy gaps will give insights into whether a remedial policy and programming effort will be sufficient, such as strengthening existing policies or their implementation, or whether major policy reform is needed. For example, consular services may be absent or limited or difficult to access in relevant countries and documentation too difficult or expensive to obtain. Nationals abroad may be resistant to return because families and communities are dependent on remittances (from legal or illegal work in the receiving country). Information programmes for nationals that are emigrating (temporarily or permanently) may exist but be limited in terms of explaining risks or are not reaching their intended audience. Development programmes may be in place but may be insufficient or not targeted to the communities where migrants are returning.

What is the size and scope of the problem and who are the beneficiaries?

On the situation of migrants abroad, examine data, trends and case studies from sources such as:

Consular services in diplomatic missions in States in question;
Media reporting;

Other stakeholders including receiving country governments, migrant/diaspora groups and others;
International organizations and NGOs that may be assisting nationals.

Be sure to examine how different groups of migrants (for example, based on sex or gender, age, race or ethnicity, sexual orientation, disability, nationality or other relevant characteristics) might be experiencing the situation differently.

On the situation in returning communities: examine existing data on the distribution of returnees and engage local authorities and community level actors through participatory processes to learn about the context of, and gain insights into, the returnee’s “ecosystem”. Explore development challenges with relevant stakeholders, including employment and labour market realities in return areas, the availability of training and education and other services such as health and housing. The psychosocial aspect of reintegration, including how ready communities are to receive returnees, is also relevant and may require additional responses.

Who are the policy actors?

Map relevant national policy actors in government, including: foreign ministry/consular; migration/interior; employment; and development actors. Local government authorities, for example governors and mayors, may also have a critical role. Policy advocates including academics, NGOs, community leaders and returnee representatives, not least those representing specific categories of returnees who may be less visible (such as women or youth) should be engaged.

Map the relevant international actors including relevant government actors in receiving States that are seeking to return the migrants, and international organizations, including regional organizations that can provide policy and other assistance.

How are other States responding?

Examine the existing guidance and literature on return and reintegration;
Reach out to regional and international communities of practice including Regional Consultative Mechanisms; map interventions of similar States;

Identify experts in international organizations that may be in a position to assist the policymaking exercise.
Explore how international legal obligations and standards regarding a State’s responsibility to its nationals abroad, including the Vienna Convention on Consular Relations, are being addressed, and how relevant human rights obligations are taken into account (read more about Diplomatic and consular law in Branches of international migration law and about Human rights obligations in Human rights of migrants: An overview).

What policy instruments are available?

Policy instruments include legislation and other legal instruments (such as regulations), programmes, charges or taxes, rules, communication tools and instructional material. Examine whether the national legal framework needs strengthening or is contributing to the challenges (for example, are there punitive measures for returnees or barriers to portability of social benefits or to the recognition of periods of education abroad for children?).

An international-level agreement or agreements between the country of origin and the receiving country or countries regarding the arrangements for return may be necessary. There may be existing agreements in place with other countries on similar issues that could guide the approach.

A series of enhanced or new assistance programmes may be needed to ensure reintegration is effective and sustainable (see Chapter 2.12 Return and reintegration of migrants). Communication tools that target returnees, returnee communities, potential migrants and their communities that explain opportunities may be needed; such tools would need to be relevant for and reach different categories of beneficiaries (for instance, categories based on sex or gender, age, race or ethnicity).

B. DIALOGUE

What are the opportunities for policy actors to come together in problem solving? What structure is needed to ensure the different actors can best inform policy thinking?

Facilitate dialogue in a way that optimizes the perspectives and insights of stakeholders. Separate consultation mechanisms and formats may be required to explore the different dimensions of the problem; a separate focus on return processes and reintegration measures may be useful.

Consider whether an intergovernmental policy taskforce could be formed for initial scoping of the issues and for assessing the state of existing policies. This intergovernmental process could then be built on with consultation exercises/mechanisms that engage different levels of government and non-government national stakeholders and international organizations and experts.

Consider how to engage stakeholders with personal experience. Be sure also to engage a diverse and representative range of stakeholders (based on sex or gender, age, race or ethnicity, and so on) who might have different experiences to consider and address. If policy interventions are likely to need implementation by a range of actors, such as local authorities or NGOs working in return communities, bring them in early so any new policy is informed as well by considerations of how to implement it.

Given the need for inter-State cooperation, foreign ministry officials may engage with diplomatic interlocutors on issues such as consular access to nationals; travel facilitation; distribution of costs for travel; documentation requirements for exit; and other impediments such as overstay penalties and detention.

C. ASSESSMENT

In considering options, what is feasible and reasonable over the short and longer term?

Return and reintegration is a complex policy challenge requiring a multifaceted response. The assessment phase can be used to separate the problem into its elements. This helps to consider, based on appraisal and dialogue, which interventions can be realistically brought into the scope of the policy and within what timeframes.

In weighing up evidence and policy options it is important to manage the ambitions of the various actors involved and to respond realistically to constraints. The assessment phase could include the feasibility of immediate and short-term measures and medium- and longer-term responses. Among other things, assessing feasibility includes legality (including international and regional legal obligations), affordability, capabilities and whether solutions can be administered in a timely way.

Dependencies between components of the suite of programmes and interventions need to be articulated to avoid “cherry picking” of simple or inexpensive measures while avoiding other more complex elements that must work together for impact.

In this example, an immediate focus may be on migrant return, in order to address the risks faced by nationals abroad and relieve some pressure politically. Considerations might include:

Whether any necessary international agreements or arrangements could be concluded quickly between or among the relevant States;
Whether national legislation creates any barriers to return, including with regard to overly limited options for proving one’s nationality and/or cumbersome nationality determination procedures or barriers to access to nationality for children born abroad;

Whether a scaled-up well-executed consular programme could be deployed to assist those nationals willing to return;
Whether the required resources and institutional capabilities are available for this, and if not, how they could be secured;
Whether a system for supporting returnees immediately on return could be established based on practice and tools used elsewhere and how these efforts could be monitored for effectiveness;
Whether a programme for informing outgoing migrants of risks they may face abroad and services available to them should be implemented sooner rather than later.

Weigh the results of the Gender-based Analysis, and the Rights Impact Assessment into these considerations (see more on how to Integrate rights principles into policymaking and The indivisibility and interdependence of rights).

There is also the need to assess policy responses to the longer-term challenges. In this example, sustainable reintegration is intrinsically linked to the sustainable development of the country of return. The policy assessment stage would need to account for this substantive constraint: reintegration policy interventions alone cannot compel major socioeconomic reform.

In terms of direct policy responses, perhaps targeted case-linked or place-based programmes are feasible, again subject to financial and administrative capacity. In addressing the broader development challenges, a policy response could be establishing coordination mechanisms with development actors to map how migration and return migration is affecting communities.

In assessing policy options, it is important to articulate realistic expectations of the interventions and reflect on why they are expected to lead to the desired impact. An extension of this would be to consider what data should be captured as part of programme monitoring to understand results. This will help to set up a solid basis for the evaluation of the effectiveness of the policy. Overreach or overpromising, particularly to appease stakeholders, will diminish the credibility of the policy and is likely to result in gaps that will have to be accounted for, and this will become apparent when starting implementation. For this example, if policy interventions were to be more modest and targeted only at specific beneficiaries, such as the returnees, it would be unrealistic to expect a result of economically flourishing returnee communities. Rather, the expected effect would be that individual returnees are supported to return and provided with a pathway to the labour market through training, counselling, employment opportunities and other key services such as health and housing, or indeed counselled on safe internal or international migration opportunities.

D. CONSOLIDATION

The process of consolidation aims to reach consensus on the policy solutions that have emerged from the assessment phase. By this stage there should be some clarity over the likely sources of friction over preferred policy solutions and what further consultation with stakeholders (and with which particular stakeholders) should be prioritized. If the emergent policy looks impractical, or unacceptable, further cycles of dialogue and assessment may be needed. Overcoming the concerns of potential joint-implementing actors is a priority; for instance, the foreign ministry that may need to expand and prioritize improvements to consular assistance, or the local governments of return areas that need to support returnees. A lack of commitment to the policy will certainly scuttle the implementation stage and, ultimately, policy success.

Key messages

Policymaking is complex, multileveled, decentralized and often highly politicized.
Good policy formulation will anticipate how the policy will be adopted and implemented, and later monitored and evaluated.
Policy formulation appraises and synthesizes evidence, engages stakeholders in a targeted way, considers options and consolidates a position on the preferred approach.