Illegal Retention of Foreign-Worker Passports by Employers in the Philippines A comprehensive legal analysis (updated June 2025)
1. Why the Issue Matters
Keeping a migrant’s passport is not a harmless “company precaution.” It restricts the worker’s constitutional right to travel, signals possible forced labour or trafficking, and exposes employers to administrative, civil, and criminal liability. The practice is expressly or implicitly prohibited in multiple Philippine laws, regulations, and standard employment contracts, and it contravenes the country’s treaty obligations under the ILO and core human-rights conventions.
2. Core Legal Framework
| Level | Instrument | Key Provisions on Passport Retention |
|---|---|---|
| Constitution | Art. III §6 (Liberty of abode & right to travel) | Any restraint requires lawful court order or national-security basis—not an employer’s preference. |
| Labour Code (PD 442, as amended) | Art. 109 & 128 | DOLE may inspect, issue compliance orders, and impose fines/closure for practices “contrary to law.” |
| Migrant Workers & Overseas Filipinos Act (RA 8042, as amended by RA 10022 & RA 11641) | §6(l), §7, §19 | Makes it an offense for any entity—including foreign employer operating in PH—to “unlawfully withhold or confiscate travel documents.” Penalties: ₱500 k–₱1 M fine + license cancellation (if licensed agency). |
| Expanded Anti-Trafficking in Persons Act (RA 9208 & RA 10364 & RA 11862 2022) | §4(a)(2), §5, §6 | Passport confiscation done “for the purpose of exploitation” is an act of trafficking; up to life imprisonment + ₱2 M fine; corporate officers individually liable. |
| Alien Employment Permit (AEP) Rules (DOLE DO 221-21, superseding DO 41-03 & DO 97-09) | Rule VII §5 | Employer must “return original passport to the foreign national at all times” and present only copies to labor inspectors. Breach is ground to suspend or revoke the AEP and impose graduated fines (₱10 k–₱100 k per count). |
| Special Visa for Employment Generation (SVEG) & PEZA/BOI Guidelines | Various circulars | Investment-zone locators must certify non-retention of foreign workers’ passports as a condition for visa endorsement. |
| POEA Standard Employment Contracts (seafarers & certain land-based categories) | Sec. 25(3) | Any withholding of travel docs by employer or principal constitutes illegal recruitment. |
| Revised Penal Code | Art. 286 (Grave Coercion), Art. 267 (Kidnapping/Serious Illegal Detention) | Where retention effectively restrains liberty, criminal liability attaches aside from special laws. |
| Civil Code | Arts. 19–21 (Abuse of rights), Arts. 1170-1172 (Damages) | Worker may recover actual, moral & exemplary damages; employer’s officers solidarily liable if in bad faith. |
| Treaty Obligations | ILO Conventions 29 & 105 (Forced Labour), ILO Protocol 2014, ICCPR Art. 12, CEDAW Art. 15 | Philippines must ensure freedom of movement and ban retention of identity papers by private actors. |
3. Jurisprudence & Administrative Rulings
| Case / Decision | Holding |
|---|---|
| People v. Soria (G.R. 227234, 16 June 2020) | Conviction for trafficking affirmed; passport withholding treated as “means” to force prostitutes to stay. |
| People v. Malabago (G.R. 214408, 3 July 2019) | Withholding of Nepali cooks’ passports constituted “coercive scheme” under RA 9208 even without direct violence. |
| Kuwait Food Corp. v. Olera (G.R. 209669, 5 Feb 2020) | POEA order blacklisting employer upheld; passport retention = serious offense in recruitment regulations. |
| DOLE Regional Office III v. Great Empire Hotel (2022 inspection case) | Hotel fined ₱200 k and AEPs cancelled for holding Chinese employees’ passports inside HR vault. |
| NLRC CA No. 06-082765-05 (“Chen v. Xiongtech”) | Reinstatement and ₱300 k damages awarded; retention created constructive dismissal. |
Note: Supreme Court has not yet squarely ruled on a pure civil suit for passport retention, but tort-based claims under Art. 21 have succeeded below.
4. Administrative Sanctions Matrix (Foreign-Worker Context)
| Agency | Sanction | Trigger | Maximum Penalty |
|---|---|---|---|
| DOLE-Bureau of Local Employment | AEP suspension / revocation | On-site retention documented | Revocation + ₱100 k fine per worker + bar employer from new AEPs for 5 yrs |
| BOI / PEZA | Cancellation of investment incentives | Violation of visa-related undertakings | Loss of tax perks; deportation request for offending expat managers |
| POEA | Blacklist employer & principal | Passport retention shown in recruitment cases | Permanent ban on hiring OFWs |
| Bureau of Immigration | Fines; imprisonment (if alien offender) | Obstruction to immigration laws | Deportation after sentence |
5. Criminal Exposure of Corporate Officers
- Trafficking (RA 9208/10364/11862) – Non-bailable if “aggravated” (child victim, abuse of authority, large scale).
- Serious Illegal Detention (RPC Art 267) – If worker’s movement is restrained by threat to keep passport.
- Qualified Theft / Estafa – When passport is misappropriated or refused to be returned after demand.
- Obstruction of Justice (PD 1829) – Concealing or destroying passports during investigation.
Vicarious liability: Directors, officers, or managing partners who allowed the act are ipso facto principals in the offense (Sec. 12, RA 9208).
6. Civil Remedies for Workers
| Remedy | Venue | Effect |
|---|---|---|
| Urgent Complaint to DOLE | DOLE Regional Office (Inspection & Compliance) | 72-hour compliance order to return document; administrative fine. |
| Labor Standards Case | DOLE-RO or NLRC (if money claims) | Awards back-wages, damages, & conversion to regular status. |
| Civil Action for Damages | RTC (ordinary civil action) | Moral, exemplary, and actual damages; attorneys’ fees. |
| Writ of Habeas Data / Amparo (in extreme coercion) | Supreme Court / CA / RTC | Immediate production of passport & protective order. |
| Criminal Complaint | IACAT-DOJ/NBI/PNP | Prosecution; asset freeze; witness protection. |
Workers may also seek assistance from the Commission on Human Rights and their embassy/consulate; diplomatic notes often accelerate compliance.
7. Enforcement Workflow (Practical Guide)
- Report – Worker or advocate files complaint (DOLE Hotline 1349 or IACAT 1343).
- Inspection – Labor inspector issues Notice of Inspection Results (NIR) and may order on-site release of passports.
- Show-Cause & Order of Compliance – Employer given 5 days to comply/explain.
- Referral – If trafficking indicators exist, case is endorsed to IACAT; simultaneous search warrant possible.
- AEP Action – DOLE-BLE suspends AEP; BI places foreign employer on watchlist.
- Prosecution / Adjudication – Parallel criminal and labor cases proceed; workers may receive interim protective shelter and work permit.
8. Employer-Side Compliance Checklist
| Do | Don’t |
|---|---|
| Keep high-resolution copies (color scan) of passports for AEP renewal & audit. | Retain original passports “for safekeeping” or deposit them in HR. |
| Incorporate a written release protocol allowing workers to store their own documents. | Require a “blanket waiver” from employees allowing retention. |
| Provide secure lockers or fireproof safes personally keyed to each expatriate. | Condition salary release, resignations, or clearances on surrender of passport. |
| Train HR on DOLE DO 221-21 and RA 9208 red flags. | Assume that a worker “agrees” orally to retention. Consent does not cure the illegality. |
| Include exit-pass procedures that rely on BI ACR-I Card, not the passport itself, to avoid excuses for retention. | Ask workers to leave passports with “company liaison” for visa conversion unless same-day processing is scheduled. |
9. Intersection with Immigration & Tax Rules
- BI Extension Processing: Third-party agents can present Certified True Copies; BI no longer requires originals except on biometrics capture day.
- BIR TIN & PEZA IDs: Scanned passports suffice; memorandum circulars (e.g., BIR RMC 62-2021) discourage surrender.
- Local Government Permits: City ABC permits accept “passport copy certified by employer.”
Thus, no Philippine agency officially obliges an employer to hold the original passport longer than the worker’s appearance at the counter.
10. Comparative & International Perspective
- Gulf States have moved from informal bans to codified penalties (e.g., Qatar Law 13-2018). Philippine rules mirror this progressive trend.
- ILO Committee of Experts consistently treats passport confiscation as a forced-labour indicator.
- ASEAN’s Bali Process guides regional raids/rescues; Philippines is an active participant.
11. Future Developments to Watch (2025-2027)
- Draft DOLE–BI Joint Circular (public consultations closed April 2025) proposes instant revocation of AEPs upon verified passport retention.
- House Bill 6765 (pending 2nd reading) seeks to criminalize retention outright with penalties of up to 6 yrs’ imprisonment even absent trafficking intent.
- Electronic Visa (e-Visa) roll-out under DICT–BI Digitalization Roadmap may render physical passport submissions obsolete for renewals.
12. Conclusion
Illegal retention of foreign workers’ passports in the Philippines is unequivocally prohibited. The act violates constitutional liberties, breaches labour standards, and may amount to forced labour or trafficking under Philippine and international law. Employers face a spectrum of sanctions—from AEP revocation and hefty fines to lifetime imprisonment for aggravated trafficking—while workers have multiple administrative, civil, and criminal avenues for redress. Robust compliance programs, informed HR policies, and respect for migrant dignity are not just ethical imperatives; they are the only lawful path forward.