Decree No. 108/2014 of 31 December, which approves the Regulation establishing the Legal Regime applicable to Foreign Citizens, relating to Entry, Stay and Exit from the Country, hereinafter referred to as D108/14, or simply "Regulation" has introduced new visa modalities and changed the characteristics of the work visa. However, more than two years after its entry into force, the new modalities are still not issued and work visas are issued in a different manner to that established by the Regulation.

The purpose of this article is to analyze and demonstrate that D108/14 in relation to the above-mentioned matters, on the one hand is not even being implemented and, on the other hand, the implementation is not complete.

New visas modalities

Through D108/14, four new visa modalities were introduced, such as:

1. The sports and cultural activities visa - that which is granted to foreign citizens duly accredited for that purpose by the competent authorities and is intended to allow the entry of the holder in the country to participate in sports competitions or training or even cultural demonstrations and competitions
2. The visa for investment activities - that which is granted to foreign citizen investors, representatives, attorneys-in-fact or members of management bodies of an investing company, to allow their entry for the purpose of implementing investment projects approved by the Council of Ministers
3. The temporary stay visa – that which is granted to a foreign spouse and minor or incapacitated children (dependents) of foreign citizens who hold a work visa
4. The crew transshipment visa - that which is granted to foreign citizens at the Maritime or Air Border Crossings and allows the transfer of the crew member from one vessel to another, from one aircraft to another or from a ship to an aircraft and vice versa

An important note regarding the new modalities of visas is that the visa provided for in subparagraph a) above can be issued both in the Diplomatic and Consular Missions of the Republic of Mozambique, as well as at Border Crossings. Those provided for in subparagraphs b) and c) follow the general regime, that is, they are issued by the Embassies and Consulates of the Republic of Mozambique. The provisions of sub-paragraph (d) are exclusively issued by the Border Crossings (maritime or air).

It is worth mentioning that at present 44 Border Crossings (Terrestrial, Maritime and Air) are formally authorized to issue sports and cultural activities visas, according to Ministerial Diploma No. 20/2017 of 2 March, but are not yet being issued. Likewise, the visa for investment activity and the temporary stay visa are not yet being issued by the Diplomatic and Consular Missions of the Republic of Mozambique.

With respect to the crew transshipment visa, among the 44 Border Crossings qualified to do so, only the sea border crossing and air border crossing can issue the crew transshipment visa, under the terms set out in paragraph 1 ab initio of article 22 of D108/14, but in practice none of the Border Crossings issues them.

It is unreasonable that, more than two years from the adoption, publication and entry into force of D108/14 (more than enough time for the demarches necessary for its effective implementation to be safeguarded) the new visas are not yet being issued.

The work visa

D108/14 changed the current characteristics of the work visa that was previously regulated by Decree No. 26/99, of 24 May, expressly abrogated by D108/14.

In the light of D108/14, the work visa underwent a partial change in its essential characteristics, i.e. it went from a simple visa to a multiple visa. Consequently, it began to allow its holder to enter the country more than once, contrary to the previous regime that established a simple visa, entitling the holder to a single entry into the country.

The period of stay coincides with 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 can last, without prejudice to renewal, as established in article 21 (1) of Decree 37/2016 of 31 August, which approves the Regulation of Mechanisms and Procedures for the Hiring of Citizens of Foreign Nationality.

Regarding the issuing entities, D108/14 refers that the work visa is issued by the Diplomatic and Consular Missions of the Republic of Mozambique.

Notwithstanding the new characteristics of the work visa imposed by law, as well as the establishment of the competent entities for its issuance, the work visa continues to be issued for a period of 30 days, being configured as a simple visa, and it is afterwards extended for a maximum period of one year with annotation of multiple entries by the Provincial Migration Services in Mozambique.

Consequently, there is an unnecessary bureaucracy that is not compatible with the law, since the work visa should have already been issued by the embassies and consulates, with multiple entries and with validity equal to the period of the approved employment contract by the labor authorities.

In relation to the extension, the Provincial Immigration Services could at the very least accept that the work visa be extended to a maximum of 730 days as stipulated in Part III of Annexes I and II of the Ministerial Diploma No. 57/2017 of 6 September.

Final considerations

The lack of issuance of the new visa modalities introduced by D108/14 reveals a lack of applicability of the law, while the issuance of the work visa in a way different to that established in D108/14 reveals a misapplication of the law. The lack of issuance of new visas and the issuance of a work visa in a way different to that established by law, on the one hand limit the rights or advantages conferred by it and on the other, cause legal uncertainty, that is, divergence between the normative result (provided for in the norm) and the result achieved. It was expected that the Diplomatic and Consular Missions of the Republic of Mozambique, the qualified Border Crossings (Terrestrial, Maritime and Air) and the Provincial Migration Services would follow the law for their acts, that is, the law should be the basis and the limit of their action as set out in the Principle of legality, one of the basic and main principles of Public Administration.

The article was also published in the SAL & Caldeira Advogados LDA Newsletter No. 39. You can click here to access the article. It is reproduced with permission of SAL & Caldeira Advogados LDA.

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