About the Immigration Advisers Authority

Immigration Advisers Authority Policy Guideline

Scope of immigration advice

Introduction

The Immigration Advisers Licensing Act 2007 (the Act) regulates people who provide “immigration advice” relating to New Zealand. From 4 May 2009, people who provide immigration advice from New Zealand must be licensed. People who provide immigration advice from outside New Zealand must be licensed by 4 May 2010.

Legislation

Definition of “immigration advice”

Section 7 of the Act defines “immigration advice”. Immigration advice is being provided when a person is “using, or purporting to use, knowledge of or experience in immigration to advise, direct, assist, or represent another person in regard to an immigration matter relating to New Zealand, whether directly or indirectly and whether or not for gain or reward.

The term “immigration matter” is defined in section 5 of the Act and covers the range of immigration applications, claims, requests and appeals that immigration advisers might come across in the course of their business.

There are three key elements to the definition of immigration advice:

the person is using or purporting to use knowledge of or experience in immigration;
that knowledge or experience is used to advise, direct, assist or represent another person;
the advice, direction, assistance or representation is provided in regard to an immigration matter relating to New Zealand.

Exclusions from the definition of “immigration advice”

The definition of immigration advice in section 7 of the Act specifically excludes:

providing information that is publicly available, or that has been prepared or made available by the Department of Labour;
directing a person to the Minister of Immigration, the Department of Labour, an immigration officer, a visa officer, a refugee status officer or a list of licensed immigration advisers;
carrying out clerical work, translation or interpreting services or settlement services.

Exemptions

Some people are exempt from the requirement to be licensed even if they are providing immigration advice. The following people can provide immigration advice without being licensed:

persons who provide immigration advice in an informal or family context only, where the advice is not provided systematically or for a fee;
members of Parliament and members of their staff who provide immigration advice within the scope of their employment agreement;
foreign diplomats or consular staff accorded protection under the Diplomatic Privileges and Immunities Act 1968 or the Consular Privileges and Immunities Act 1971;
employees of the public service who provide immigration advice within the scope of their employment agreement;
New Zealand lawyers with current practising certificates as a barrister or as a barrister and solicitor of the High Court of New Zealand;
persons employed by or working as volunteers for community law centres where at least one lawyer is on the employing body of the community law centre or is employed by or working as a volunteer for the community law centre in a supervisory capacity;
persons employed by or working as a volunteer for citizens advice bureaux;
persons who provides immigration advice offshore in relation to applications or potential applications for student visas or student permits only.

Guidelines

The context in which a person may provide what amounts to “immigration advice” to another person is broader than the sector of the business community than identifies itself as immigration advisers. There are other areas of industry such as the recruitment sector, the travel sector and the education sector, for example, where it is necessary or desirable that information about immigration is passed from one party to another.

Whether “immigration advice” is being provided in a particular situation will depend on the facts and surrounding circumstances in which the advice is given. It is not possible to provide definitive statements covering the range of potential scenarios in which “immigration advice” might be given, however, some general principles can be distilled from the definition in section 7 of the Act, and the exclusions that form part of that definition. Some examples of scenarios in which immigration advice may or may not be given are provided below: Note: the examples are for demonstration purposes only and do not represent legal advice.

As a general guideline, the following circumstances are likely to be present when “immigration advice” is being given:

the advice involves assistance or direction or representation that is tailored to the particular circumstances of the individual being advised;
the advice is in the nature of guidance based on the adviser’s knowledge of or experience in immigration;
the guidance involves offering an opinion or suggestions about possible entitlements the individual has, or avenues the individual might take.

Example Scenario One

A person who advises another person to apply for residence in New Zealand under a particular category, describes the advantages of applying under that category over an alternative category and assists that person to tailor their application to meet the requirements of that category is using his or her knowledge of immigration to advise, direct and assist another person in regard to an immigration matter relating to New Zealand and is providing “immigration advice”.

Exclusions

Providing information that is publicly available or is prepared or made available by the Department of Labour

Providing information to another person that has been obtained from a publicly available source, or that has been prepared or made available by the Department of Labour, is not providing “immigration advice” under the Act. Information is publicly available if it is contained in a public register, in a publicly available publication such as a magazine, book, newspaper, or other publication that is or will be generally available to members of the public or is contained on a website accessible by the public.

The Immigration New Zealand website publishes comprehensive information about immigration requirements, including the Immigration New Zealand Operations Manual. Merely providing information obtained from the website or the Operations Manual does not amount to providing immigration advice.

Publicly available information does not need to be provided to another person “first-hand” or in “hard copy” form – “relaying” information that one has obtained from a publicly available source, will not amount to immigration advice if the information provided is not accompanied by guidance or assistance or direction tailored to the particular circumstances of the individual being advised.

Example Scenario Two

A person who describes to another person the eligibility criteria for a particular immigration category or categories as it is represented on the Immigration New Zealand website or in a publication produced by the Department of Labour so that the person can decide for him or herself whether to apply under a particular category is not providing “immigration advice”.

Directing a person to an official or to a licensed immigration adviser

A person who directs another person to any of the following sources of assistance is not providing “immigration advice” under the Act:

a list of licensed immigration advisers such as the Register of Licensed Immigration Advisers maintained by the Immigration Advisers Authority;
an immigration officer, visa officer or refugee status officer;
the Department of Labour, including Immigration New Zealand;
the Minister of Immigration.

Clerical work

Carrying out clerical work is not providing “immigration advice” under the Act. Clerical work is defined in section 5 of the Act and includes the provision or services in which the main tasks involve any or all of the following:

recording, organising, storing, or retrieving information;
computing or data entry;
recording information on any application, request or claim on behalf of and under the direction of another person.

The administrative elements of preparing a visa or permit are likely to come within the definition of “clerical work” and will not amount to “immigration advice”. This includes completing an application form on behalf of and under the direction of another person and gathering information needed to make an application for a visa or permit.

Note: clerical work is primarily about the administration and processing of information. Where information is used to represent another person, for example, by liaising with Immigration New Zealand on behalf of that person, or advocating to a Tribunal on behalf of that person, that activity is likely to amount to “immigration advice”.

Example Scenario Three

A person who completes a visa or permit application form under the direction of and on behalf of another person without offering guidance, assistance or direction tailored to the circumstances of the individual concerned, and forwards that application form to Immigration New Zealand is undertaking “clerical work” and is not providing “immigration advice”.

Translation or interpreting services

Providing translation or interpreting services is not “immigration advice”. A person who, in the act of interpreting or translating information, transfers immigration advice from one party to another is not personally providing immigration advice.

Settlement services

Providing settlement services is not “immigration advice”. “Settlement services” are defined in section 5 of the Act as “all or any of a range of targeted support services provided for migrants, refugees and their families, including services for the purposes of enabling them to settle into the community, learn the language and find out how to access essential community services”.

Summary

The definition of “immigration advice” and the various exclusions from the definition effectively draw a distinction between providing “information” and providing “advice”. Passing factual information to another person, orally or in writing that the person could have obtained him or herself from a publicly available source is not “advising”. Advising has the characteristics of guidance, assistance or direction tailored to the circumstances of the individual being advised.

Interviewing a person only in order to complete an immigration application form or to process a visa or permit application on behalf of that person also does not have the characteristics of advising.

The line between providing publicly available information/performing clerical work and providing “immigration advice” is crossed when the adviser adds something from his or her knowledge or experience in immigration to assist, direct or guide the person being advised to choose between options or uses his or her experience in or knowledge of immigration to represent that person.

Individuals or organisations that have concerns about aspects of their activities should seek independent legal advice before deciding whether or not they need to be licensed. Individuals may also consider aligning themselves with a licensed immigration adviser so that the processing and administrative aspects of their business can be retained whilst the more challenging advice-related aspects are referred to a qualified licensed adviser.

Immigration Advisers Authority