- Transferring employees
Article 75 of Law no. 23/2007, of 01 August (the Labor Law) allows employers to transfer employees from one workplace to another. This can include the transfer of a foreign employee from the compa- ny’s headquarters to a branch of the same company in another province.
Transfers can be either :
- temporary: taking place under exceptional circumstances related to the company’s administration or production; or
- definitive: which is permitted, unless contractual provisions provide to the contrary, in cases where there is a total or partial change in the company or the part thereof where the worker is employed.
In Circular No. 004/MITRAB/DTM/GD/211/2013, dated 19 August the Labor Immigration Directorate states that "all communications of transfer shall include the duration thereof, and if the transfer is temporary it must not exceed the time period authorized".
- Updating the residence document (DIRE)
Based on the aforementioned article of the Labor Law and the Circu- lar, we understand that there is a duty to notify the labor authorities when a foreign employee is transferred, and, the relevant legal requirements being fulfilled, authorization to transfer is given. This is how the transfer of the worker is legalized for work purposes.
In terms of a change of the foreign employee’s place of residence however, and particularly in relation to the residence document (DIRE - Residence and Identification Document for Foreigners), questions arise about the correct procedure to follow.
There are cases where employees with valid DIREs, having been transferred from one province to another to work for the same employer, have been advised by the immigration authorities that they must update their DIRE. However, because the DIRE is a biometric document, this update can only be accomplished by requesting the issuing of a new DIRE, and paying the corresponding fee.
Note that pursuant to Ministerial Decree No. 262/2010, of 24 December the fees for issuing temporary DIREs are:
- 14,400 MT for citizens of the Community of Portuguese Language Countries (CPLP);
- 19,200 MT for citizens of other countries.
This requirement, that a new DIRE be applied for when a foreign worker is transferred while remaining employed by the same employer, arises from the interpretation of Article 22 of Law No. 5/93 of 28 December, the law which regulates the legal status of foreign citizens. Article 22 requires that foreigners residing in Mozambique report changes of domicile to the immigration authorities and request endorsement of their residence document to reflect their new address. However, this endorsement was only possible before the introduction of biometric DIREs.
The introduction of biometric DIREs through Decree No. 12/2008 of 29 April means that endorsement of the actual residence document is no longer possible, so the aforementioned Article 22 was tacitly repealed by the new regulation.
The above-mentioned immigration law (5/93) is now regulated by Decree No. 108/2014 of 31 December (D108/2014), and the paragraph b) of Article 36 of this Diploma indicates that foreign nationals have a particular duty to communicate to the Immigration Service any change of nationality, marital status, profession, workplace, or domicile, or any absence from the country beyond the period provided for by law.
Thus, based on the provision above-mentioned we are of the opinion that there is no reason to request a new DIRE when transfer- ring a foreign employee from one province to another, since the procedure required is merely a communication to the immigration authorities about the change.
This view is reinforced by paragraph a) of Article 1 of D108/2014 which defines the residence document as "the document issued by the relevant authority that grants its bearer the right to reside in Mozambique for the period indicated therein." This provision does not limit the validity of the DIRE to a single province from which it follows that the DIRE is a national level document and has no geographic restriction within the country.
In addition, the transfer of a worker is not one of the reasons listed in Article 35 of D108/2014 for termination of the residence document, from which we can conclude that a transfer does not constitute a cause for termination of the DIRE, and thus there is no reason to request a new document merely for the purpose of updating the bearer’s domicile.
We therefore consider that the transfer of a foreign worker from one location to another, when there is no change of employer, does not give rise to an obligation to apply for a new DIRE as a result of the transfer. However, please note that if the employer changes, the DIRE-holder loses their right to residence upon termination of the employment contract with their employer, and must request a new DIRE based on their new employment with a different employer, in accordance with paragraph 2 of Article 32 of the Labor Law. Based on our analysis of the abovementioned legislation in accord- ance with the rules laid down for legal interpretation in the Mozam- bican Civil Code, no legal provision obliges a foreign citizen to apply for a new DIRE due to a change of workplace or domicile, where there is no change in employer.
For these reasons, we consider that in the absence of a Circular from SENAMI (the National Migration Service) which creates a legal obligation to apply for a new DIRE in the case of foreign workers being transferred from one province to another within the same company, the worker is merely required to communicate the transfer to the immigration authorities as the law requires.