One case occurs when the foreign citizen holding a temporary residence permit leaves the country and stays abroad for more than ninety days.² Losing residence status means that the foreign citizen will have to rely on visas to enter the country. Otherwise, the foreign citizen will be interdicted if trying to use the residence permit, even if it is still valid.³ Besides, if the foreign citizen intends to recover his/her residence status, will have to start over the burdensome process for obtainment of residence permit. This means, among other requirements, obtaining a new certificate of criminal record in the country of origin along with a new work or residence visa, as the case may be.  

Providentially, loss of resident status in case of long absence from the country can be avoided by seeking an Abroad Permanence Permit (“Autorização de Permanência no Estrangeiro”). In order to obtain this document a prior notice must be given to the immigration services, explaining the reasons and time of absence which cannot exceed the validity of the residence permit.⁴  With the Abroad Permanence Permit, the foreign citizen can leave the country without risking loss of resident status.

However, obtainment of the Abroad Permanence Permit does not exempt the foreign citizen from the requirement to renew the residence permit during the time abroad.⁵ Expiry of residence permit outside the country may lead to loss of resident status. This is as such because applications for residence permit renewal must be submitted in Mozambique, and the presence of the applicant is required.⁶ The foreign citizen who is abroad with an expired residence permit must request a visa in order to enter the country.

Therefore, if the time left for the residence permit to expire is short, and knowing that absence from the country might exceed ninety days, it is better to submit the application for residence permit renewal altogether with the request for an Abroad Permanence Permit. Then, in order to leave the country an exit declaration can also be requested.⁷ In these case, the foreign citizen will (i) keep resident status for having his/her residence permit under renewal, (ii) have an authorization to stay abroad for more than ninety days, and (iii) leave and later on enter the country through an exit declaration.

As we can note, when it comes to preserving resident status, awareness, preparation and anticipation is the best course to take. Hence, before leaving the country, foreign citizens should check if the residence permit is about to expire and take the most effective action accordingly. With this approach comes peace of mind and less stressful situations.

1. Clause on governing law: There are cases where the parties determine that the employment contract will be governed by, let’s say, English law or South African law. However, it must be noted that all employment performed in Mozambique, is regulated by Mozambican law.¹ This applies even in cases of entities with privileges and immunities, such as embassies, high commissions and consulates. Mozambican labour courts are very strict when it comes to applicable law. Thus, if work is to be performed in Mozambique, the Mozambican labour law applies – Mozambican labour courts open no exceptions to this rule.
   
   
2. Clause on dispute settlement – the relevant jurisdiction: There are cases where the parties may agree to refer the dispute settlement to another jurisdiction other than Mozambican. However, the Mozambican legislation is quite strict on this matter too. All dispute settlement on labour matters must be referred to Mozambican jurisdiction.² Actually, the law nullifies any dispute settlement clauses that remove the jurisdiction of Mozambican courts.³ Besides, there are no provisions on conflict of laws in labour matters, making it difficult to refer labour dispute settlements to foreign jurisdictions. This matter is of utmost importance in case of litigation, because if not followed properly, can result in a company losing a case in court. Therefore, in case of dispute settlement, Mozambican jurisdiction is the one to be referred to. Again, Mozambican courts hardly open exceptions to this rule.
   
   
3. Clause on contract duration: Employment contracts with foreign citizens cannot exceed two years. Renewal is allowed upon submission of a new work permit application.⁴ However, irrespective of number of new work permit applications, the employment contract does not convert into permanent contract.⁵ There are cases where the parties may agree on the employment contract duration of, for instance, three years, which is contrary to what is determined by Mozambican law. In case a work permit application is submitted with a contract with these provisions, immediate rejection is likely to occur. I note that companies that enter employment contracts that do not comply with the duration legal limit, generally keep them secret, i.e., do not submit such contracts to the labour authorities (please see point no. 4).
   
   
4. Not submitting the employment contract for certification by labour authorities: In this case the risk is much higher. This is as such because once the parties sign the contract the employee starts working immediately in the company. However, since no work permit was issued, such contract is not formally valid. This means that in case of a labour inspection visit two scenarios are likely to occur: (i) huge fines to the company will be applied, and (ii) immediate suspension of the foreign employee will be enforced.⁶ Accordingly, in order to ensure validity of employment contracts with foreign citizens, a work permit must be obtained before the employee starts working in the company.

Nonetheless, there are cases where one or all of the above situations may occur, and still, the employment contract is performed. Labour Law, Article 52.2, provides that “An employment contract that has been declared void or cancelled shall have all the effects of a valid contract if it is actually performed and throughout the duration of the performance.”⁷ This means that if there is a dispute settlement and such contract is presented to the Mozambican courts, the company may be deemed liable for all its legal consequences.⁸ To prevent this, there is one and only safe way: strictly follow the law of the land when entering into employment contracts with foreign citizens!

One aspect is the obtainment of work permits under a short term work regime. The Regulations on Employment of Foreign Citizens, Article 6, provide the documents required are as follows:

• • Application letter, giving the grounds for employment, i.e., an explanation of the reasons leading to the employment of the foreign citizen, highlighting his/her professional qualifications and skills.
  • Certified copy of the foreign employee’s passport.
  • Certified copy of the company license (Alvará).
  • Payment of an official fee corresponding to 1 (one) minimum wage of the company’s activity sector.

Quite clear and simple, right? Theoretically yes, but in practice not all work permit applications are created equal. This happens because focusing only on legislation might be an invitation to application rejection. Even if the company gathers all legally required documents, at the end of the day it is all dependent on the software program for work permit applications: SIMIGRA – one system to rule them all!

In one occasion I gathered all documents for obtainment of work permit under a short term work regime. After several checklists I was confident that all legal requirements were conforming. However, when I arrived at the local labour department to submit the application, the software program required that the company proves its conformation with social security and tax payments. I complained that those requirements were against the law since they are not mentioned in the Regulations on Employment of Foreign Citizens, Article 6. The State officials agreed that, from a legal perspective, the application was all perfect, but for the software program the application was incomplete. The tricky dissonance between law and practice was evident. No amount of legal reasoning about the importance of following the law worked. The Lord of work permit applications – SIMIGRA – overlapped the law.

So, how do we avoid risks of application rejection, especially in urgent cases? The answer is – homework. Yes, a combined approach to gather legal and practical requirements. It is important to ensure that the legal documents are in place, while at the same time confirmation is made with the authorities. This exercise may be necessary whenever an application is about to be submitted, considering that the software program may be updated and new documents, not provided in the Regulations on Employment of Foreign Citizens, might be requested.

Another point to take into consideration is the fact that different provinces may have different approaches to the same matter. For example, when it comes to giving notice about termination of a foreign citizen’s employment contract,² the Labour Department in one province may issue – through SIMIGRA – a written confirmation of such fact, while the Labour Department in another province may just keep silent. These tiny discrepancies may create confusion to the investor, with business in different provinces.

Therefore, at the end of the day, when it comes to employment of foreign citizens, strict compliance with the law and constant interaction with the labour authorities is relevant, no matter how simple the procedure may be. With this combined approach, a lot of stress can be prevented, and, of course, huge fines avoided, safeguarding the integrity of the investment.

1. Changes to Employment Contract: The Regulations on Employment of Foreign Citizens provide that the employment contracts with foreign citizens must compulsorily contain: (i) identification of the employer and the foreign employee, (ii) occupational grade, duties or activities agreed, (iii) place of work, (iv) duration of the contract, which cannot exceed 2 (two) years¹, (v) amount, form and timing of wage payments, (vi) date of beginning and end of performance. However, in case of change of any of the above mentioned details, notice to the local province labour department must be given. A copy of the relevant agreement must be attached to the notice² The Regulations on Employment of Foreign Citizens do not provide a specific period in which the notice must be given. Therefore, from a practical perspective, the sooner, the better.
2. Professional License: There is also the need to pay attention to some specific activities that demand professional license (e.g.: engineers, nurses, doctors, chartered accountants, etc.). In these cases the employment contract will only be valid if a professional license is provided. Otherwise the contract will be deemed null and void.³ Therefore, special attention to this detail is relevant, since this can have implications for the company in case of litigation.
3. Termination of Employment Contract: There is also the need to give notice to the province labour department in case of termination of the employment, irrespective of the reasons for termination. This notice must also be given to the province immigration department. The notice must be given within fifteen days from the date of the employment termination.⁴
4. Transfer of Foreign Employees:⁵ Much attention is required in case of transfer of foreign employees. This is as such because the Regulations on Employment of Foreign Citizens limit the employment of foreign citizens to the province where the work permit was issued.⁶ This means that if, for instance, the work permit was issued by the labour department in Inhambane province, the foreign employee is limited to work solely in Inhambane. 

The Regulations on Employment of Foreign Citizens provide that there can be temporary and definitive transfers. Temporary transfer refers to cases where the foreign employee goes to another province to deal with specific work issues and then returns to his/her original province. Temporary transfer does not cover the whole contract duration. On the other hand, there is definitive transfer when it covers the whole contract duration. In these cases transfer is allowed if the company totally or partially relocates to another province.⁷ However, definitive transfer is made possible if the company has available quota in the new location. Exception to this rule is given in cases the company has no branch or representation in the province to which the foreign employee is transferred or in case the company activities are of national coverage or in various provinces. Implementation of definitive transfer is subject to prior mutual agreement between the employer and the foreign employee.

The transfer⁸ notice must be given to the labour department in the province where the work permit was issued. The company must keep copies of the notice in the province to which the foreign employee is transferred. This is as such because in case of a labour inspection the copies can be presented to the labour inspectors as evidence of legal compliance.

The above mentioned are some details that companies need to be aware of when managing foreign employees’ contracts. To comply with each of these details, all needed is a letter (along with relevant documents) giving notice to the labour authorities. Of course, interaction with the labour authorities is always relevant to ensure full compliance from a practical perspective – remember SIMIGRA!⁹ Nevertheless, attention to these details can make a huge difference between painful fines applied by the labour inspectorate or peace of mind for complying with the law. Choose wisely!