The approval of Decree No. 108/2014, of 31 December, hereinafter referred to as 'D108/14' or simply 'Decree', was eagerly welcomed by the Mozambican business community, citizens of foreign nationality and the general public as it innovated the Legal Regime Applicable to Foreign Citizens, related to Entry, Stay and Exit from the Country; however, this expectation was soon frustrated, due to several reasons, one of them being addressed in this article.

This article aims to address the innovations brought by this Decree regarding the work visa regime, comparing them with the current praxis implemented by the National Migration Service - SENAMI, demonstrating how the regime is being applied in a way different from what was expected.

Innovations in the D108/14 regarding work visas

The D108/14 introduced significant changes in work visas in relation to the period of stay in the country and the number of entries allowed. To facilitate understanding, let us take as a prelude, paragraphs 1 and 2 of article 19 of this Decree that provide the following:

"1. The work visa is granted to the foreign citizen by the Diplomatic and Consular Missions of the Republic of Mozambique ..."

"2. The work visa must be used within 60 days after the date of its grant and allows the holder multiple entries and stay until the end of the employment contract..."

One of the innovative aspects has to do with the multiple entries, that is, the work visa allows the entry of its holder into the country more than once, contrary to Decree no. 26/99, of 24 May (D26/99), which was repealed by D108/14, provided for a simple working visa, ie it only entitled its holder to a single entry into the country.

Another innovative aspect has to do with the period of permanence, that is, the work visa now has a period of stay equal to the period of validity of the employment contract, meaning that, in accordance with the Mozambican legal system, the stay may be up to two years, which is the maximum period that an employment contract with a foreign citizen may last without prejudice to the renewal, as established in article 21, paragraph 1, of Decree 37/2016, of 31 August, approving the mechanisms and Procedures for the Hiring of Citizens of Foreign Nationality.

The latter aspect has, to a certain extent, eliminated the need to assign the Document of Identity and Residence for Foreigners (DIRE) to the holders of the work visa because, under the Decree, the work visa alone allows the stay of the foreign citizen until the end of the contract.

Application different from the established in D108/14 in relation to the new work visa regime

In October 2017, SENAMI canceled the issuance of residence permits (DIRE) in favor of the holders of the work visa, and started to extend the respective visa for a period of one year. However, doubts arise as to how this procedure should be applied because, at this stage, it was expected that the above legal provisions would be complied with, namely and cumulatively that:

• The work visa would be issued ab initio by the Embassies and Consulates of the Republic of Mozambique (Diplomatic Missions)
• It would be issued for multiple entries by the entities referred to in a), enabling a priori the entry of its holder in the country more than once (multiple visa), and
• It would be granted for a period of stay equal to the period of employment contract approved by the labor authorities (maximum of two years)

The current practice sets aside D108/14, to the extent that the Mozambican embassies and consulates abroad continue to issue a simple work visa, valid for 30 days, that is, it does so under the terms of article 15 of the D38/2006, which was repealed by D108/14, giving rise to an unnecessary bureaucracy which amounts to an extension of the same by SENAMI.

However, at the time of the extension of the work visa, SENAMI should at least do so for two years (730 days) whenever the employment contracts appended to work communication /permit were valid for two years. However, even if there is a work communication /authorization valid for more than one year, SENAMI only admits extensions up to one year (365 days), which contradicts not only D108/14 but also the Ministerial Diploma No. 57/2017, of 6 September, which provides for the extension of up to 730 days equivalent to two years, through payment of the overall fee of MZN 28,800 or MZN 33,337.50 depending on whether the request is normal or express (urgent) in accordance with Annexes I and II of the said Diploma .

Moreover, the divergence of the application of D108/14 is due to the fact that the dependents of the holder of the work visa continue to be granted a residence visa which contradicts the provisions of Article 23 (1) of D108/14, which establishes the grant of temporary stay visas to the spouse, dependent and incapacitated minor children of the holder of the work visa, enabling them to remain in the country up to one year, which can be extended in succession until the end of the reason for which it was granted.

Final considerations

Possibly, the non-application of D108/14 as foreseen and established may be associated to the justification that all the new visas introduced by this Decree, including the work visa, are in their entirety biometric and of electronic reading, and the material conditions to put the issue into practice has not yet been created.

It is known that, to date, most visas, including work visas, with the exception of border visas remain manual and not biometric. Still, it is clear that the current work visa sticker is not biometric nor does it incorporate all the necessary mentions or specifications of the current work visa. However, this should not prejudice the implementation of the work visa as foreseen and established in D108/14 in so far as the current work visa issued by Embassies and Consulates only lacks: i) annotation of the period of stay equal to the period of validity of the employment contract approved by the labor authorities; and ii) annotation of the multiple entries, to configure the expected visa as established by law.

In the light of the foregoing, it is easy to see that instead of waiting for the material condition, the inter-sectoral coordination (Ministry of Home affairs, SENAMI and Ministry of Foreign Affairs and Cooperation) could perhaps be a solution for the correct and coherent application of the current Decree.

The article was also published in the SAL & Caldeira Advogados LDA Newsletter No. 36. Access the article. It is reproduced with permission of SAL & Caldeira Advogados LDA.

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