Mozambique: Directive of 1986 - General Principles to be Observed in According Refugee Status

Part I

Article 1 Persons to be considered refugees.

(a)  Any person who, owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to return to or request the protection of that country; or

(b)  Any person who, not having a nationality and being outside the country of his habitual residence, is unable or, owing to such fear, unwilling to return to it, shall be considered as a refugee. A person who has more than one nationality may be accorded refugee status only if the circumstances mentioned above apply to each of the States of which he is a national.

Article 2 Persons who may not be accorded the status of refugee.

A person may not be considered a refugee if:

(a)  He has committed, or there are serious reasons for considering that he has committed, a crime against peace, a war crime, or a crime against humanity, as defined in the instruments drawn up to make provision in respect of such crimes and subscribed to by the People's Republic of Mozambique;

(b)  He has committed a serious non-political crime outside the People's Republic of Mozambique before being admitted to that country as a refugee;

(c)  He has been guilty of acts contrary to the purposes and principles of the United Nations.

Article 3 Competence to grant asylum.

(a)  The Minister for Security is competent to take a decision regarding the granting of asylum;

(b)  Where necessary, the Advisory Commission for Refugees, described in Article 6, shall be consulted.

Article 4 Extension of refugee status.

(a)  When a person has been recognized as a refugee, the entry into the People's Republic of Mozambique of any member or members of his family group wishing to join him shall be facilitated.

(b)  For this purpose, the term "member of his family group" means the applicant's spouse and children under age, as well as the ascendants in the first degree of the applicant or of his spouse if he is married, provided it is proved that he or she is responsible for them.

Article 5 Legal status of refugees.

(a)  A refugee in principle enjoys the rights and has the duties of an alien resident in the People's Republic of Mozambique, which require in particular that he should respect and observe the legislation in force in the country, including instructions concerning the maintenance of public order;

(b)  A refugee shall have the right to be issued an identity document attesting to his status as such and delivered by the competent authority as well as a valid travel document when he has to travel outside the country.

(c)  This document may be refused for compelling reasons of security or public order determined by the People's Republic of Mozambique.

Article 6 Advisory Commission for Refugees.

(a)  An Advisory Commission for Refugees shall be attached to the National People's Security Service (SNASP) and shall make recommendations on application for asylum whenever necessary at the request of the Minister for Security.

(b)  The Commission shall consist of representatives of the Ministries of Foreign Affairs, Justice and the Interior;

(c)  A representative of the Office of the United Nations High Commissioner for Refugees shall attend working meetings of the Commission and shall state his views whenever necessary.

Part II

Article 7 Applications for refugee status.

(a)  A person who has lawfully entered the People's Republic of Mozambique or is lawfully present in its territory and wishes to remain there with the status of refugee in accordance with the provisions of Article 1 shall lodge an application for refugee status in due form with the competent authority;

(b)  The application shall set forth the names of the applicant and of the members of his family group, the facts or circumstances on which the application is based, and any documentary evidence that may be in the applicant's possession. Testimony may be provided by witnesses, provided that the number of such witnesses shall not exceed five;

(c)  The application must be lodged within thirty days of the date of entry into the People's Republic of Mozambique or, if the applicant is resident in the country, of the date on which the facts on which the application is based occurred or became known;

(d)  The authority receiving the application shall acknowledge the receipt of the application on the copy thereof, recording the date of submission, which shall be retained by the applicant.

Article 8 Authority competent to receive applications.

(a)  The authority competent to receive applications for asylum is the National Directorate of Migration;

(b)  If the application is lodged with an authority other than the authority names in the previous sub-paragraph, the document shall be forwarded immediately to the latter authority by the speediest means available.

Article 9 Provisional residence permit.

(a)  Having received the application, the National Directorate of Migration shall provide the applicant and the persons named in the application with a provisional residence permit, which shall be valid until a final decision is taken on the application, if the decision is favourable; if the application is rejected, the provisional residence permit shall be valid for a reasonable period to enable the applicant to obtain the desired status in another country;

(b)  Children under twenty-one years of age shall be named in the applicant's provisional residence permit.

Article 10 Investigation of the application.

(a)  After receipt of the application, investigation shall be begun and shall consist essentially of interviewing the applicant, undertaking such enquiries as the latter may suggest, and obtaining any information, explanations or other material the competent authority considers important. Where necessary, the representative of the Office of the United Nations High Commissioner for Refugees may be consulted;

(b)  Investigation of the application shall be completed within sixty days, which period may be extended for a further thirty days by decision of the Director of the National Directorate of Migration where grounds therefor exist.

Article 11 Recommendation and ruling.

(a)  When the investigation is completed, the file shall be transmitted without a delay to the Director of the National Directorate of Migration, who shall enter his recommendation on the documents within a period of fifteen days;

(b)  The file shall be forwarded promptly to the Minister for Security, who shall make known his decision within fifteen days;

(c)  Where necessary, the Minister for Security may, before taking a decision, seek the views of the Advisory Commission for Refugees, which shall communicate them within ten days.

Article 12 Notification and communications.

(a)  When the decision is taken, the Director of the National Directorate of Migration shall arrange for it to be communicated to the applicant;

(b)  at the time, the text of the decision shall be communicated to the representative of the Office of the United Nations High Commissioner for Refugees; The Centre for Assistance to Refugees and Liberation Movements (NARML) shall also be informed of the decision.

Article 13 Application for review.

(a)  If the decision is negative, the applicant shall, on being notified of it, be informed that he is entitled to apply within ten days to the authority concerned for a review of the decision;

(b)  The application for review shall be accompanied by any additional material that may be in the applicant's possession and may be accompanied by the recommendation of the representative of the Office of the United Nations High Commissioner for Refugees;

(c)  Where an application for review is made, the Minister for Security shall seek the views of the Advisory Commission, which shall communicate its recommendation within ten days;

(d)  The file, with the papers mentioned, shall again be transmitted to the Director of the National Directorate for Migration, who shall make known his recommendation within fifteen days;

(e)  The papers shall be promptly communicated to the Minister for Security for his decision.

Part III

Article 14 Illegal entry - application for refugee status.

(a)  Any person claiming the status of refugee who may have entered the territory of the People's Republic of Mozambique unlawfully and who wishes to obtain asylum shall present himself without delay to the authorities and lodge his application orally or in writing;

(b)  The application shall be accompanied by any documents considered useful, and further enquiries may be instituted;

(c)  If the application is made orally, the authority receiving it shall reduce it to writing, setting forth the most important circumstances of the case.

Article 15 Authority normally competent to receive the application.

(a)  In cases of illegal entry, the body competent to receive the application for asylum shall be the Migration Service of the locality where the applicant presents himself.

(b)  If the Migration Service is not represented in the locality, the application shall be made to the authority present in the locality, which shall make the necessary enquiries in accordance with the next Article below;

(c)  When the necessary enquiries have been made, the file shall be forwarded to the Migration Service or to the nearest administrative authority, which shall transmit it to the National Directorate of Migration;

(d)  The body receiving the application shall acknowledge its receipt on the copy, recording the date of receipt, the copy being furnished to the applicant.

Article 16 Summary collection of evidence.

(a)  The authority receiving the application shall examine the applicant, making a record of his statements concerning the circumstances of his illegal entry into the People's Republic of Mozambique and the grounds for his application;

(b)  If the applicant is accompanied by members of his family, they shall be named in the record of his testimony, if they are not already identified in the application;

(c)  The authority investigating the application shall, so far as possible, collect without delay all the evidence available to it that can be obtained in the locality where the applicant has presented himself;

(d)  The enquiries referred to above shall be undertaken with the least possible delay.

Article 17 Provisional evidence.

(a)  When the application has been received, as provided in Article 14, and the preliminary evidence obtained indicates that the applicant is likely eventually to be found eligible for asylum, a provisional residence permit shall be issued by the National Directorate of Migration to the applicant and the persons named in the application for asylum;

(b)  A request for the permit shall be made to the National Directorate of Migration by the most rapid means possible as soon as the evidence referred to in the previous sub-paragraph has been obtained either by the authority which undertook the preliminary investigation or by the Migration Service or administrative authority which received the file with the preliminary evidence if the examining authority does not possess facilities for speedily requesting the provisional residence permit;

(c)  If the file is already in the possession of the National Directorate of Migration and the provisional residence permit has not been issued, the Directorate shall issue the permit;

(d)  The provisional residence permit shall be valid until a final decision is taken on the application for asylum, if the decision is favourable to the applicant; if not, the provisional residence permit shall be valid for a reasonable period to enable the applicant to obtain the desired status in another country;

(e)  Children under twenty-one years of age must be named in the applicant's provisional residence permit.

Article 18 Position of applicant not granted a provisional residence permit.

(a)  In cases where a provisional residence permit is not granted, restrictions on the movement of the applicant and members of his family as illegal entrants to the country shall not be limited to those which are necessary;

(b)  The restrictions mentioned above may be imposed for compelling reasons of national security or public order invoked by the People's Republic of Mozambique;

(c)  The authority which undertook the preliminary investigation or the authority which forwarded the file in accordance with the provisions of Article 15, sub-paragraph (c) shall, using the speediest means of communication, seek the guidance of the National Directorate of Migration concerning the restrictions to be applied to the movements of the applicant and members of his family in cases where a provisional residence permit has not yet been issued;

(d)  For the purpose of the preceding sub-paragraph, the authority concerned shall submit with the request for guidance a summary of the facts ascertained in the preliminary enquiry.

Article 19 Transmission of file to the competent authority.

(a)  When the enquiries are completed, the authority shall immediately transmit the file by the speediest means available to the National Directorate of Migration.

(b)  The Directorate shall, if it considers it necessary to do so, undertake a further examination, in the course of which the applicant may be interviewed and information may be requested from the representation of the Office of the United Nations High Commissioner for Refugees;

(c)  The further investigation shall be completed within thirty days, which period may be extended by a further period of thirty days by decision of the Director of the National Directorate of Migration, where necessary.

Article 20 Recommendation and decision.

(a)  When the investigation is completed, the file shall immediately be transmitted to the Director of the National Directorate of Migration for consideration and the Director shall make his recommendation in accordance with the provisions of Article 11, sub-paragraph (a), and within the period specified therein;

(b)  The file shall then be submitted to the Minister for Security for decision within fifteen days;

(c)  The Minister for Security may, where necessary, seek the views of the Advisory Commission for Refugees;

(d)  In making the decision in cases where the applicant entered the country illegally, consideration must be given to the difficulty normally experienced by applicants in producing satisfactory evidence when claiming asylum.

Article 21 Notification and communication.

(a)  When the decision is taken, the Director of the National Directorate of Migration shall arrange for it to be communicated to the applicant and shall order it to be communicated to the representative of the Office of the United Nations High Commissioner for Refugees and also to the Centre for Assistance to Refugees and Liberation Movements (NARML);

(b)  If the decision is negative, the applicant shall, on being notified of it, be informed that he is entitled to apply to the authority making the decision for a review of the decision within ten days from the date of notification.

Article 22 Application for review.

(a)  When application is made for review, the application shall be accompanied by any additional material in the applicant's possession and may be accompanied by the recommendation of the representative of the Office of the United Nations High Commissioner for Refugees;

(b)  The Minister for Security shall seek the views of the Advisory Commission, which shall communicate them within ten days;

(c)  When the documents mentioned have been attached, the file shall be forwarded to the Director of the National Directorate of Migration, who shall make known his recommendation within fifteen days;

(d)  The papers shall then be submitted to the Minister for Security for his decision.

Article 23 Communication of decision.

The decision on the application for review shall be communicated to the applicant, to the representative of the Office of the United Nations High Commissioner for Refugees and to the Centre for Assistance to Refugees and Liberation Movements.

Article 24 Offences arising in connection with illegal entry.

(a)  Where criminal or administrative offences related to illegal entry into the People's Republic of Mozambique may have been committed by the applicant and members of his family and criminal or administrative proceedings have been instituted, the proceedings shall be suspended when the application is submitted, particularly in regard to the absence of identification documents for the applicant and the members of his family;

(b)  If asylum is granted, the proceedings shall be set aside on the grounds that the offence or offences committed are the consequence of the circumstances justifying the granting of asylum;

(c)  For the purposes of the preceding sub-paragraph, the Director of the National Directorate of Migration shall without delay inform the body or bodies which instituted the criminal or other proceedings of the granting of asylum.

Part IV

Article 25 Granting of asylum, travel and identity documents.

(a)  When asylum has been granted, the National Directorate of Migration shall issue an identity document attesting to the holder's refugee status and a travel document valid for travel outside the People's Republic of Mozambique in the name of the applicant and the members of his family;

(b)  Children under age may be entered on the travel document issued to the father or mother or, in exceptional cases, on the travel document of another adult refugee;

(c)  The document shall be valid for two years and may be renewed for further two years period;

(d)  The travel document shall be issued for as many countries as possible, save in exceptional cases necessitating a restriction or restrictions.

Article 26 Naturalization.

(a)  The People's Republic of Mozambique shall facilitate the acquisition of Mozambican nationality by naturalization by persons having the status of refugees and wishing to acquire Mozambican nationality;

(b)  Naturalization shall be granted on fulfilment of the requirements of the Nationality Act on the same conditions as it is granted to other aliens.

Article 27 Expulsion of refugees.

(a)  A refugee lawfully in the People's Republic of Mozambique may not be expelled except on grounds of national security or public order;

(b)  A refugee may be expelled only in pursuance of a decision reached in accordance with the rules governing the legal procedure for expulsion;

(c)  The refugee shall be allowed to make use of the remedies available under the law to defend himself against the charges justifying his expulsion, notably by the submission of evidence to clear himself;

(d)  The right mentioned above may be denied only for compelling reasons of national security;

(e)  The refugee shall be allowed a reasonable time to obtain legal admission to another country.

(f)   Where necessary, the People's Republic of Mozambique may, during this period, apply such internal measures as it deems necessary, having regard to the circumstances of the case.

Article 28 Limitation of decision to expel. Prohibition of refoulement.

(a)  In no case may a refugee be expelled to a territory where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion;

(b)  This principle may not, however, be invoked by a refugee for whom there are reasonable ground for regarding as a danger to the security of the People's Republic of Mozambique or who, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the Mozambican community.

Part V

Article 29 Prohibition of expulsion to another territory of an applicant for refugee status.

An applicant for refugee status may not be expelled to any other country before a final decision has been reached by the Minister for Security concerning his application for asylum.

Part VI

Article 30 Refusal of asylum.

(a)  Where an application for asylum is denied, the provisional residence permit shall be valid for a reasonable period, which may not exceed one hundred and twenty days, solely for the purpose of enabling the applicant to seek asylum in another country or to return to a country in which he has already been granted asylum.

(b)  On the expiry of this period, the person denied asylum shall be subject to the legislation in force concerning aliens in the People's Republic of Mozambique if his expulsion is not ordered.

Part VII

Article 31 Information concerning applications for asylum.

(a)  An authority receiving an application for asylum, whether the Migration Service in the locality where the applicant presents himself, or the nearest Migration Service, or administrative authority in the case of an application received from another authority shall immediately inform the National Directorate of Migration of the applications for the asylum received, identifying the applicant and accompanying members of his family and the locality in which he presented himself;

(b)  The National Directorate of Migration shall inform the representative of the Office of the United Nations High Commissioner for Refugees and the Centre for Assistance to Refugees and Liberation Movements of the applications referred to in the preceding paragraph, as well as of any submitted directly to it;

(c)  The information transmitted shall identify the persons listed in the applications and the localities in which the applicants presented themselves.

Part VIII

Article 32 Functions of the Centre for Assistance to Refugees and Liberation Movements.

The functions of the Centre for Assistance to Refugees and Liberation Movements in relation to refugees and applicants for refugee status shall be:

(a)  to assist applicants for refugee status in matters relating to the procedures for obtaining asylum, when so requested;

(b)  to assist refugees to obtain travel and identity documents, as well as other bureaucratic and administrative matters, when so requested;

(c)  to organize and keep up-to-date the individual files of applicants for refugee status and of persons obtaining asylum;

(d)  to maintain good relations with authorities concerned with the social and economic well-being of refugees, such as the health, education, labour, justice and security authorities;

(e)  to maintain similar relations for the benefit of applicants for refugee status, where appropriate;

(f)   to furnish specific and timely assistance to refugees and applicants for refugee status, where appropriate, in matters of health, employment, technical training, economic activities and education, including instruction in the official language;

(g)  to assist applicants for refugee status and refugees in matters relating to food, housing, clothing and other prime necessities;

(h)  to provide information concerning the principal features of the status of refugees, including the rights and duties of refugees;

(i)   to inform refugees of the general principles prevailing in political, administrative, economic, social and cultural matters in the People's Republic of Mozambique, so as to permit their speedy and successful assimilation into Mozambican society;

(j)   to promote activities to provide lasting solutions for the problems of refugees with a view to securing their integration in the community on as complete and self-sufficient a basis as possible;

(k)  to take the necessary steps for the repatriation of refugees, if and when this is possible.