In the Philippines, the admission, stay, and departure of foreign nationals are primarily governed by the Philippine Immigration Act of 1940 (Commonwealth Act No. 613), as amended. When a foreign national exceeds their authorized period of stay, they transition from a legal status to an "overstaying" status, which carries significant legal consequences ranging from administrative fines to mandatory deportation.
1. Defining Overstaying Status
A foreign national is considered overstaying if they remain in the country beyond the expiry date of their visa (e.g., 9(a) Temporary Visitor’s Visa) or if their visa has been cancelled or revoked by the Bureau of Immigration (BI). Under Section 37(a)(7) of C.A. No. 613, any alien who remains in the Philippines in violation of the limitation or conditions under which they were admitted is subject to arrest and deportation.
2. Options for Regularization (Legalizing Stay)
The Bureau of Immigration generally prefers voluntary compliance over adversarial deportation proceedings. If an individual has not yet been issued a Summary Deportation Order (SDO), they may pursue the following routes:
The Motion for Reconsideration (MR) for Overstaying
Foreigners who have overstayed for a period (usually exceeding six months) must file a Motion for Reconsideration on Overstaying.
- Requirements: Submission of a sworn affidavit explaining the reason for the overstay, a valid passport, and payment of accumulated fines.
- The "Lapse of Time" Rule: If the overstay is less than 12 months, the process is often administrative and settled by paying the Arrears and the Fine for Overstaying (currently PHP 500 per month).
- Long-term Overstay: If the overstay exceeds 12 months, the application usually requires the approval of the Commissioner and may involve the Legal Division for clearance.
Conversion of Visa Status
An overstaying alien cannot convert their visa to another status (e.g., to a 13(a) Non-Quota Immigrant Visa or a 9(g) Working Visa) without first "clearing" their overstaying status. The fines must be settled, and the stay must be updated before any petition for conversion is entertained.
3. The Deportation Process
If a foreign national is apprehended by the Intelligence Division or fails to regularize their stay, the state initiates formal deportation proceedings.
Grounds for Deportation
Beyond mere overstaying, deportation is triggered by:
- Entering the country by false pretenses.
- Engaging in gainful employment without a proper Work Permit/Visa.
- Conviction of a crime involving moral turpitude.
Procedural Steps
- Issuance of a Mission Order (MO): Signed by the Commissioner, authorizing the arrest of the individual.
- Charge Sheet: The Legal Division files formal charges against the respondent.
- Board of Commissioners (BOC) Hearing: The case is deliberated. Unlike criminal courts, the BI follows administrative procedures where the burden of proof is on the alien to show their right to remain.
- Order of Deportation: Once final, the BOC issues a warrant of deportation.
4. Penalties and Consequences
The legal and financial repercussions of overstaying are cumulative:
| Penalty/Consequence | Description |
|---|---|
| Administrative Fines | PHP 500/month overstay fee + PHP 500/month Motion for Reconsideration fee. |
| Express Lane Fees | Additional fees for expedited processing of arrears. |
| Blacklisting | Mandatory for deported individuals. This prevents re-entry into the Philippines indefinitely unless a Lifting of Entry Ban is granted. |
| ECC Requirement | An Emigration Clearance Certificate is required for those staying over 6 months to prove they have no pending obligations. |
5. Voluntary Departure (The "Graceful Exit")
In certain cases, a foreigner who knows they have overstayed may apply for Voluntary Departure. This is often preferred because:
- It avoids the indignity of detention at the BI Warden’s Facility in Camp Bagong Diwa.
- While it still involves payment of fines and potential blacklisting, it may show "good faith" should the individual apply to lift the blacklist from abroad in the future.
6. Judicial Recourse
While the Bureau of Immigration has broad discretionary powers over the stay of aliens, their decisions are not entirely immune to judicial review. Under the principle of due process, a foreign national may file a Petition for Certiorari with the Court of Appeals or the Supreme Court if there is a grave abuse of discretion amounting to lack or excess of jurisdiction in the deportation order. However, such petitions rarely stay the deportation unless a Temporary Restraining Order (TRO) is issued.