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Precautionary hold departure orders (PHDO)

The Supreme Court issued new rules on precautionary hold departure orders (PHDO). The Rule on Precautionary Hold Departure Orders was approved by the Supreme Court on April 7, 2018. It will take effect 15 days after it is published in a newspaper of general circulation. In the meantime, the applications for hold departure orders pending before the trial courts under the old rules should still be acted upon as soon as possible.

The Supreme Court issued the Rules on Precautionary Hold Departure Orders on August 7, 2018

Precautionary Hold Departure Orders or PHDO

A PHDO is “an order in writing issued by a court commanding the Bureau of Immigration to prevent  any attempt by a person suspected of a crime from leaving to depart the Philippines.”

The rules on PHDO authorizes the Regional Trial Court (RTC) to issue a PHDO in cases where an accused is facing a charge where the minimum penalty is at least six (6) years and one (1) day.

Under the current rule (OCA Circular 39-97), the RTC can only issue issue a HDO when the case is already before it, and has already undergone preliminary investigation.

Major difference between a PHDO and a HDO

But a PHDO is different from a HDO.

There is no need for preliminary investigation for the RTC to issue a PHDO (unlike an HDO). It only requires a determination that “that there is a high probability that the subject will depart from the Philippines to evade arrest and prosecution of a crime against him or her.” 

The precautionary hold departure order is issued ex parte. This means that it can be issued only with the the participation of the prosecutor. A prosecutor applies for a PHDO before a regional trial court in the same way that he applies for a search warrant. Based on what the complaint states, the judge makes a finding of probable cause solely  for the purpose of issuing a PHDO. Afterwards, a copy of the PHDO along with the identity details of the accused are transmitted to the Bureau of Immigration where it would be put on the HDO list.

This finding is “without prejudice to the resolution by the prosecutor of any criminal complaint during the preliminary investigation.” That means that once the prosecutor conducts preliminary investigation it can be lifted. In preliminary investigation, the accused presents his defenses and the prosecutor then determines if there is probable cause. If there is no probable cause, the PHDO is withdrawn.

The PHDO remains valid until the court recalls it. But the accused can file a motion questioning the existence of a probable cause being a flight risk. This is something that those with business overseas would normally ask. They may need to go abroad for meetings or other company-related purposes which can suddenly crop up and it would be extremely impractical to conduct court hearings each time to allow the person to leave. For those who simply want to take a family vacation, posting of a bond will probably be sufficient since the vacation is planned ahead of time, and the bond can be recovered when the accused comes back.

Just because some people need to fly out of the country frequently does no make them a flight risk. What makes a person a flight risk is that there is a high probability that the person will not come back after he leaves.

The exception to the rule on territorial jurisdiction is the authority given to regional trial courts in the City of Manila, Quezon City, Cebu City, Iloilo City, Davao City, and Cagayan de Oro City to act on applications filed by the prosecutor based on complaints instituted by the National Bureau of Investigation, regardless of where the alleged crime was committed.

Only Associate Justice Marvic Leonen dissented from the majority.

The SC allows issuance of precautionary hold departure orders only for those crimes punishable by 6 years and 1 day and higher because these are the crimes where imprisonment is required. Those who commit crimes punishable by less than are covered under the Probation Law, which allows them freedom under probation. Most people will not uproot themselves from their lives here if they can still live freely under probation, but certain imprisonment might cause them to leave.

 

 

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.