Exit Clearance Update: Visa should be downgraded or canceled before ECC is issued

The Bureau of Immigration has a new policy on clearances for foreign nationals who are leaving the country for good.

Under the new rule, Emigration Clearance Certificates (ECC-A), more popularly known as exit clearances, will no longer be issued to holders of valid immigrant or non-immigrant visas who are leaving the country for good (not just temporarily). They should first downgrade their visas or have them canceled. Under the new rule, the BI no longer allows automatic cancellation of visas by having the ACR I-Card canceled.

The new rule (dated 14 June 2017 amending BI Advisory SBM-2013-001) removed from the list of those who are allowed to apply for ECC-A those persons with immigrant and non-immigrant visas who are leaving for good.

 

What’s the difference?

The previous procedure allowed foreign nationals to have their visa canceled automatically when they depart. They just need to file an application for an ECC-A as a holder of a Philippine visa who is leaving for good. The previous procedure did not require a foreign national to take time and expense to downgrade his current visa. For those with work visas, this allowed one to work up to the last day, or even the last minute of his stay in the Philippines.

The new rule changes this.

Now, foreign employees have to cease work with their company when their visa status is downgraded.

Remember that canceling or downgrading a work visa would remove the right of the person to work in the Philippines. After the visa of a foreign national is downgraded, he cannot work anymore unless he obtains another visa or special work permit. Any company that continues his employment may be sued for violation of immigration and labor laws. The foreign national may also be put in harm’s way and may be held by the BI for violation of immigration laws if he is found out.

 

NOTE: Companies should let their employees know about the effects of downgrading.

Companies should therefore be careful about this policy and should take this rule into account with regard to their alien employees, and consider as well the timelines for issuance of a downgrade and ECC-A.

I hope that the BI will address this gap in the rule to avoid problems. It is not economically feasible for a company to pay for the upkeep of a foreign national while waiting for his visa downgrade, and then waiting again for the EEC-A to issue.

Of course, companies can also protect themselves. They should inform their foreign employee at the start of the employment that they will not work or be paid while waiting for issuance of the visa downgrade and ECC.

Foreign nationals should be wary. Companies who do not downgrade the visas of their employees, but secure only an ECC-B (issued only to foreign nationals who are leaving the country temporarily) so that they can leave can put their future visa applications in jeopardy. Their visas will not be canceled. The effect is that they will still be considered to have a visa (even if expired). They will be unable to obtain a new one when they apply for one in the Philippine Consulate. Their remedy is to have the company apply for cancellation of their visa first.

 

Please note that this new rule only covers those visas that require exit clearances. It does not affect those who have visas that are exempted from obtaining clearances and certifications from the Bureau of Immigration.

Silhoutte of Husband & Wife Arguing

Marital Privilege. Can one spouse testify or squeal against the other?

 

Does marital privilege apply?

The wife of a very high ranking official of the Philippine government accuses him of having amassed ill-gotten wealth. The official was installed as the head of a a constitutional body by the previous government, one that the present government is hostile to. The administration and its allies pounce on this opportunity to replace him, probably through impeachment. But there might be a problem.

Under the Rules of Evidence, one’s spouse is AUTOMATICALLY DISQUALIFIED to be a witness against the other while they are married. The only exceptions to that rule are (1) if the affected spouse consents, or (2) if the testimony is for use in a civil or criminal case against the affected spouse for offenses committed against the other spouse or his/her descendants. The Supreme Court has made another exemption in jurisprudence – (3) when domestic relations are so strained that there is no more harmony to be preserved or tranquility which may be disturbed.

The marriage between the government official and his wife is not over. In fact, just until recently when she got boxes of evidence and withdrew money for herself from their joint account, they lived together under the same roof. That means that their domestic relations were not so strained, otherwise, they wouldn’t be living in the same house at all. The fact that they still lived together shows that there was some harmony and tranquility in their relationship, otherwise, one would not trust the other enough to allow that person access to the house and to the confidential matters and secrets inside.

So, it is clear that there is absolute spousal disqualification, or as people in the legal world call it – absolute marital privilege. Does it really matter? After all, the wife of the official is filing a case for Legal Separation and violation of the Anti-Violence Against Women and Children (Anti-VAWC) Law. Surely she can testify against her husband? Of course she can. She can produce all this evidence and help the court decide if indeed their family is worth only PHP 176 million pesos, or over a billion.

But can the evidence in that case be used for other case? Not necessarily.

Under the Rules of Court, evidence is offered for only for the purpose of proving certain things. It cannot be used for purposes other than what it is offered for. In a case for VAWC or Legal Separation, the purpose for offering the evidence would not be to prove that some of the wealth is ill-gotten. If that ever happened, a lawyer would oppose the offer for being irrelevant to the case and will be sustained. Ill-gotten wealth has nothing to do with VAWC or Legal Separation.

And that makes the testimony in the Family Court cases useless for the filing of any case for ill-gotten wealth.

Another interesting question. Can the press releases made and the evidence brought out be used against the government official? Yes. But let me qualify. I’ll have to get into some technicality, so bear with me.

The government investigators can definitely use the evidence brought out by the wife. They can listen to her testimony for the leads. They can examine every document she brought to them. BUT… they cannot use her testimony to authenticate those documents.

What is authentication, and why is it important in the filing of a case? Evidence should be authenticated by the person who brought it out. Authentication is done by stating the circumstances as to how she obtained the evidence, and that the evidence presented is the very same ones she obtained. But she can’t do that if she is disqualified from testifying because authentication is done by testifying. In fact, her complaint filed with the NBI is a testimony against her husband, and the husband has every right to have it thrown out based on absolute marital privilege.

But the Supreme Court also declared in a landmark case that a wife who ransacked the husband’s cabinet at home could not use the evidence there.

In short, this means that all the evidence she has brought out of the house cannot be used in any case, UNLESS other independent evidence is found. The investigators can use the documents she brought with her as a starting point for their own investigations. If they find evidence where they will not need her to testify, then they can use it for prosecution of ill-gotten wealth.

And again, there may be a problem there. If you think that a investigators can just summon bank executives to talk about the bank accounts, you’d be engaged in fantasy. We have bank secrecy laws to protect those who own those accounts.

If you’ve read the blog entry of ThinkingPinoy, he says that there is a loophole that can be used – if the wife pursues a VAWC case, then the evidence is made public, and the wife would be able to testify. No, that’s not true. The wife would still not be able to testify or authenticate her testimony. Marital privilege is an objection that can be made even before the evidence is presented, so that means that it can never be presented.

Justice Secretary Vitaliano Aguirre said that marital privilege is nothing to worry about because the couple are no longer together. Again that’s incorrect. They are still married, and the evidence was taken at the time they lived together. Moreover, there is another marital privilege that states that everything said to the wife in confidence during the marriage is confidential and can never be divulged. That includes documentary evidence. And since the wife still lived with the husband at the time, he can always say that documents are privileged information that should be excluded from evidence. Again, there is already a Supreme Court case that discussed this.

To understand why marital privilege is so strong, you have to understand why it is there in the first place. Spouses are presumed to speak to each other about everything in the course of their relationship. This is because they have the same interest for the family and they are presumed to be acting in tandem to the same goals. This rule protects that both spouses in that it removes a burden from their minds that what they say would be used against their family.

Hence, testifying against the spouse would amount to testifying against one’s self – and that would be a violation of a person’s right against self-incrimination. This is also to avoid the danger of admitting perjured testimony and to prevent the witness spouse from being liable for perjury.

And lastly, as a matter of public policy, this is to preserve the marital relationship, family unity, solidarity and harmony. Even if the couple is separated, if they have children, there should be a modicum of civility between them. Once something like this is brought to court, the enmity it generates can be quite deep that it would destroy any chance of good relationships further down. This also prevents the danger of “punishing the party spouse through hostile testimony, in cases of domestic troubles between the spouses.” As in this case. Yes, that last line was quoted from a Supreme Court case.

I do admire her and her legal team because of a very good move they made to avoid marital privilege. The wife said that she is not after dirty money. Her complaint in the NBI was really to tell them that there is dirty money and that she did not know what was dirty and what was clean. She wanted them to help her sort it.

This puts things in a gray area. That may remove her from the coverage of the marital privilege rule because this is about the determination of what belongs to her and her children, so in essence, it partakes of a case of her and her children against him. The only problem is that the case in the NBI is not a criminal or civil case. But I’ll leave for debate. Anyone’s argument here is as good as mine.

Lastly, there may be an impeachment down the line.

I do not know if marital privilege will be allowed during impeachment proceedings. It is a different animal not covered by the Rules of Court. They have their own rules of testimony which I’m not going to cover here.

Is Yasay stateless?

THE FACTS

On November 24, 1986, Perfecto Yasay took an Oath of Allegiance to the United States of America. He was granted US citizenship on November 26, 1986. Sometime after that, Yasay applied for and was issued a US passport.

He officially filed his renunciation of his U.S. citizenship at the U.S. Embassy in Manila on June 26, 2016, two days before he assumed the position of Philippine foreign secretary. On February 2017, the US included him on its list of persons who have lost their US citizenship based on information it had received as of December 2016.

From the time that he took his Oath of Allegiance to the USA, he has not taken the Oath of Allegiance to the Philippines, at least, based on news reports as of this writing.

WHEN YASAY TOOK OATH AS AN AMERICAN CITIZEN, DID HE LOSE FILIPINO CITIZENSHIP?

The answer is YES, he lost his Philippine citizenship.

As soon as took his Oath of Allegiance to the United States in 1986, Yasay automatically lost his citizenship. It did not matter if it took a few days before the US recognized him as a citizen. In fact, it would not have mattered if Yasay’s US citizenship was later disapproved or removed. The operative act was he took his Oath of Allegiance to another country, and that country naturalized him.

The Philippine law that actually determines loss of citizenship – Commonwealth Act No. 63 (CA 63) – enumerates all the ways that a person may lose it:

  1. (1) By naturalization in a foreign country;
  1. (2) By express renunciation of citizenship;
  1. (3) By subscribing to an oath of allegiance to support the Constitution or laws of a foreign country upon attaining twenty-one years of age or more (unless in time of war)
  1. (4) By rendering services to, or accepting commission in, the armed forces of a foreign country (there are exceptions to this rule)
  1. (5) By cancellation of the certificates of naturalization;
  1. (6) By having been declared a deserter of the Philippine armed forces in time of war
  1. (7) In the case of a woman, upon her marriage to a foreigner if, by virtue of the laws of force in her husband’s country, she acquires his nationality.

Yasay did three out of the seven different acts when he took the Oath of Allegiance to the US to obtain his citizenship. The US Oath of Allegiance required him to support the US Constitution and its laws. It also contained an express renunciation of citizenship, and lastly, he was naturalized in a foreign country.

Any single ONE of these acts could have resulted in a loss of citizenship. But in his case, he performed THREE.

Yasay reasoned out that he took his Oath of Allegiance half-heartedly, and therefore he could not have lost his Filipino citizenship. The common reaction of most lawyers and law students was, “Hello?!”

In the first place, it is a principle of law that an oath is never considered half-hearted. An oath administered by a public official is sacred and seriously made, and if broken, will have direct consequences. Yasay knows this. He is a lawyer not just in the Philippines, but also when he was in the United States.

Secondly, Yasay applied for and was issued a US passport. A US passport is issued to only to US citizens or citizens of US territories. In applying for one, the application form contains an acknowledgment that one is a US citizen or a citizen of a US territory. By applying for a passport, he therefore affirms and recognizes his US citizenship. He also applied for a renunciation of his US citizenship and certification of his loss of nationality. Again, if he was never a US citizen, then he should not even be obtaining this document. They are only issued to US citizens!

Lastly, and most importantly, the mental disposition of Yasay is not important in determining loss of citizenship (unless he took his Oath of Allegiance while he was insane). CA 63 is a special law in which intent is irrelevant. The only thing important is whether ANY of the acts described were performed. In Yasay’s case though, he performed MULTIPLE acts.

Clearly, he lost his citizenship by operation of law.

WHEN YASAY RENOUNCED HIS AMERICAN CITIZENSHIP IN 2016, DID HE REGAIN HIS FILIPINO CITIZENSHIP?

The answer is NO.

Once Filipino citizenship is lost, there is only one way to get it back – through repatriation. That’s it. There is no other way.

Renouncing one’s foreign citizenship will not give you back your previous Philippine citizenship.

The process for repatriation is straightforward. In the old law (CA 63, as amended) and the new one (RA 9225), it requires taking an Oath of Allegiance to the Philippines. There is no report stating that Yasay has taken the Oath of Allegiance to the Philippines under either law.

Since he has not taken an Oath of Allegiance to the Philippines, then he is not considered a Filipino. His current Philippine passport may be canceled and he may even be liable to perjury – for lying under oath that he is a Philippine citizen or for claiming under oath that he was never a citizen of the USA.

DOES YASAY NEED TO PROVE HIS CITIZENSHIP TO BE ISSUED A PHILIPPINE PASSPORT?
A passport is only be issued to a Filipino citizen. But since Yasay already renounced his US citizenship and has not yet taken an Oath of Allegiance to the Philippines, then he is neither American nor Filipino. He seems to be Stateless at this point.

A Philippine passport cannot be issued to a stateless person.

In a recent news report, an official from the Department of Foreign Affairs commented that he probably would be issued a passport because there is a presumption that he is a Filipino citizen. Is there a presumption of citizenship? May Yasay use this presumption to get a Philippine passport?

The Supreme Court has settled this time and again, and clarified the rule further in recent jurisprudence involving Grace Poe case. The Supreme Court declared that there is no presumption of Filipino citizenship.

A petitioner who seeks to avail himself of a benefit given only to Philippine citizens has the burden of proving Filipino citizenship if it is any doubt. Let’s apply that principle in Yasay’s case.

News reports have been saying that Yasay is applying for a new Philippine passport despite having one that is supposedly valid until mid-2018. Since Yasay is the one applying, then he should be the one to prove Filipino citizenship, especially considering his testimony under oath in a public and well-publicized forum that he performed three out of seven acts that automatically removed his Filipino citizenship.

Let us see how the DFA handles this. In any case, even if the DFA disapproves issuance of his passport, it is easy for him to file for repatriation and become Filipino again.

VISA FREE ENTRY TO INDIAN NATIONALS

Indian nationals may enter the Philippines visa free at any port of entry for as long as they possess the following requirements:

  1. Passport with validity of at least six (6) months beyond the contemplated stay;
  2. Return or onward ticket to the next country of destination;
  3. Valid and current AMERICAN, JAPANESE, AUSTRALIAN, CANADIAN, SHENGEN, SINGAPORE, or UNITED KINGDOM visa (AJACSSUK) or permanent residence permit;
  4. No derogatory record (i.e., watch list or blacklist) with the Bureau of Immigration.

They will be issued an initial authorized stay of fourteen (14) days. This may be extended for another seven (7) days for a maximum of twenty-one (21) days.

This admission cannot be extended beyond twenty-one (21) days and cannot be converted to other visa categories.

VISA FREE ENTRY FOR CHINESE NATIONALS

Chinese nationals may be granted VISA FREE ENTRY to the Philippines for a stay of up to seven (7) days provided that they possess the following requirements:

  1. Passport valid for at least six (6) months beyond the contemplated stay;
  2. Return or onward ticket to the next country of destination;
  3. Any of the following valid and current visas: AMERICAN, JAPANESE, AUSTRALIAN, CANADIAN, or SHENGEN
  4. No derogatory record (i.e., watch list or blacklist) with the Bureau of Immigration (BI)
    The seven (7) day visa entry may be extended by an additional fourteen (14) days for a maximum of twenty-one (21) days.

A Chinese national who enters the Philippines under this type of admission cannot extend his or her stay.

This admission cannot be converted into other Philippine visa types which would allow further stay in the country. This admission program is primarily for promotion and encouragement of tourism for Chinese nationals.

Hold Departure Order

Is your name on a Hold Departure Order? What to do if it’s not you.

Anyone with a common name might find themselves in the watch list or hold departure order bulletin of the Bureau of Immigration.

 

It happened to my mother. It happened to a friend. It happened to an acquaintance. The BI computers flagged their names for having a hold departure order (HDO) in their names.

The BI officer took them to its back office. The officer-in-charge interviewed them and scrutinized their documents. My mom had no problem. My friend proved her identity and she left without a hitch. But my acquaintance was offloaded and prevented from taking her flight. Her ticket was not refunded, and the hotel bookings she made could not be canceled. A lot of money wasted for nothing, and without any fault on her part.

Yes, it’s not your fault. And you might prove later on that the person in the list isn’t you. But the airline will not compensate you even if the BI was wrong. That’s the reality. And you can’t file a case against the BI officer because he was just doing his job.

And if you have a relatively common name, it can happen to you. So be ready.

 

Why can this happen?

The Bureau of Immigration officers at the airport are not only there to stamp your passport. They keep undesirables from coming in, and they keep people from travel abroad if they are on a watch list or a hold departure list. They can immediately carry out their decisions. The thing is that they cannot do anything more if their computer flags your name. They can only apologize. You can’t even ask them to talk to your lawyer. I know this for a fact.

But some knowledge may help you out of a tight spot. That’s why I write this.

 

Hold Departure Orders and Watch List Orders.

Department of Justice (DOJ) issues the Bureau of Immigration a bulletin of Hold Departure Orders (HDO) and Watch List Orders. These orders should include the full name of the person, aliases, date, and place of birth, passport details, place of the last residence, and the details of the case involved.

The problem occurs when the pertinent information is lacking. Thousands have been “victimized” because the incompleteness of the details forces BI officers to stop a person for an interview simply because he or she shares the same name of a person of interest.

If the BI stops you at the immigration area of the airport, remember that the BI officer will presume that you are the same person as that on the list. That means that you have to prove that you are not that person.

But what if the only thing the BI has is a name or alias? That really is a problem.

The BI should resolve how to improve this system because it causes trouble to vacationers, businessmen, and OFWs who are stopped from boarding because of similar names. If the BI prevents them from boarding, they would have to pay for another plane later on even after they prove that they are not the same person. For some of them, they may even be terminated from work if they cannot leave immediately.

Can we do anything?

The BI and the DOJ should strictly implement Watch List and Hold Departure Order requirements. They should make sure to include all the required personal data on the Watch List or Hold Departure Orders before implementation. The Supreme Court should issue guidelines that require lower courts to ONLY issue hold departure orders if the required personal data is available.

Those measures alone would greatly help. But these are policy measures that we normal people can’t do. On our side we can remember a few things.

Remember to look at the date of issuance of the HDO or Watch List Order. A HDO is only valid for 5 years from its issuance. A Watch List Order is valid only for 60 days from issuance. If the HDO or Watch List Order is expired, the BI cannot keep you from flying out.

Is there a way to find out if you are on a list? The BI does not publish the list online or anywhere else. However, you may visit their office to secure a verification from the Clearance and Certification Section of the BI to see if there is a pending Hold Departure Order or Watch List Order on a person with your name. You will need to pay a fee and to show your passport.

If you are on a list, then there are remedies. You may get a certification from the BI that you are not the same person. You’ll need these: (1) Letter of Request and affidavit of Denial; (b)   Photocopy of your passport bio-page; (c)   Latest clearance from the National Bureau of Investigation (NBI); and (while not required) if possible, (d)  Clearance from the court or government agency where the case is pending.

Always bring evidence of who you are, preferably work or government IDs. Get a post office ID or barangay ID to prove residency. Bring evidence of your status, your job, your birthday, etc. A friend of mine proved that she could not possibly be the person in the hold departure order by showing that she was a doctor with her own clinic, while the person in the HDO was wanted for qualified theft of electrical wires.

Perhaps later on, with the new ID system the government is contemplating, it might be easier for us. Until then, just be prepared.

Dentists, doctors, and optometrists are exempted from business permits

 

Doctors, dentists, and optometrists are exempted from payment of business or mayor’s permit. This includes their clinics.

The DILG issued Memorandum Circular 2016-170 on November 28, 2016, exempting medical and dental clinics from obtaining business permits or mayor’s permits for their operation. The circular declared that medical and dental clinics used exclusively for medical and dental checkups and procedures are a direct consequence of the practice of one’s profession, and therefore exempt from payment of business or mayor’s permit. All that is required is that the practitioners pay their profession tax (PTR) for practice of their profession. They will still have to secure other permits for their clinics like fire inspection and building permits.

The DILG issued the circular because it noticed several local governments that were still requiring medical and dental clinics to pay for business permits despite a previous 1999 decision issued by the Department of Finance. The Secretary of Finance at that time issued an opinion that professions requiring government examination, like dentists and doctors, are required to pay professional tax, “but are exempted from payment of mayor’s permit or license fee for the practice of such profession. Medical clinics, as a direct consequence of the practice of such profession, cannot be being imposed with a graduated tax on the premise that it is a business establishment offering to render professional service.”

Dentists were clearly exempted as early as 1999 because their professional organization filed a case to exempt them. This decision was reiterated in another order issued by the DILG in August 2013. Many of my dentist friends have never applied for mayor’s permits since they opened their own clinics, and have told me that this is being taught in their dentistry schools.

This decision was used by doctors’ organizations to make a case for exemption, but many doctors still apply and pay for a mayor’s permit. Many do not know any better. At least now, it is very clear.

The DILG also exempted optometrists and optometry clinics from application and payment of business permits. It noted a trial court decision that declared that optometric clinics should be exempted from payment of a business or mayor’s permit because it is an indispensable part or ingredient of the profession of an optometrist. The DILG circular did not include optometry in the title of the circular, but it is quite clear in the main body of the rule.

The exemption only applies to those clinics that are exclusively used for practice of a profession. If the clinic generates income that is not part of the practice of a profession, the local government will require a business permit. This applies for example if the clinic generates income from sales of products (i.e., medicines in case of medical clinics, glasses in case of optometry clinics, toothpaste, toothbrushes, etc., in case of dental clinics). Here is the exact provision:

The circular settled the issue for dentists, doctors, and optometrists.

In the next writeup, I will talk about the application of this rule to other professions that require a PTR.