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Newsletter July 2011

In a family or partnership, who should sign the written agreement?

Our licensing assessors have identified some confusion among advisers regarding which clients should sign the agreement with the adviser.  This is especially so when the adviser is dealing with a partnership or family.  

We generally expect the principal applicant to sign the agreement with the adviser.  The adviser should use some discretion regarding who else might need to sign.  However certain factors make it more likely that a secondary applicant or other client should also sign an agreement.  This might be the same agreement as the principal applicant or a different agreement. 

One factor is whether the secondary applicant or other client is paying the adviser.

Another factor is where the principal applicant is living overseas and the adviser is also providing immigration advice to the principal applicant’s partner or sponsor in New Zealand. In this situation, this ‘secondary applicant’ is also receiving direct immigration advice.  This might also apply in some families, where one person is the family decision-maker or communicator.  The adviser might be asked to provide immigration advice directly with this person, even though the visa application is for a different family member.

In a partnership situation, the person who initially appears to be the secondary applicant may become the principal applicant.  This may be because the secondary applicant turns out to have the stronger immigration case.  If the secondary applicant becomes the principal applicant (and they have not already signed the agreement) then they could either sign the original agreement as an amendment or sign a separate agreement.  

If both partners are seeking visas and receiving immigration advice, we suggest you ask both partners to sign the agreement at the beginning. We also recommend that the agreement states what steps the adviser will take if the relationship breaks up prior to the completion of immigration assistance. For example, you could agree that if the relationship between the two clients were to dissolve, you may choose not to continue to represent the secondary client if this presented a conflict of interest for you.

Advisers should also be mindful of confidentiality requirements, even where applicants are involved in the same immigration application or are in the same family. It would be prudent to check with each client if they authorise the adviser communicating or sharing information with any other party. If so, the client should specify with whom and in what circumstances this would be acceptable. 

Clause 1.5(b) of the code of conduct states that agreements should include a full description of the services to be provided by the adviser. Where the adviser is providing immigration services to multiple family members, best practice would be to include in the agreement(s) the names of the relevant visa applicants and if appropriate, their respective visa types.

Enforcement information on our website

Eagle-eyed visitors to the Immigration Advisers Authority website will have noticed a few changes.  We have simplified the titles of some sections to make it easier for visitors to navigate the site.

In addition, we have introduced a new enforcement page, which includes information about what activities constitute offences under the Immigration Advisers Licensing Act and how to inform the Authority of unlicensed adviser activity.

The Authority’s small investigations team is kept busy with information received each week about possible unlicensed activity.  In March, Jotame Tavisoro was convicted without sanction of asking for or receiving a fee or reward for immigration advice.  There are a number of other individuals currently facing Immigration Advisers Licensing Act charges. 

However, the team does not focus exclusively on prosecutions.  Sometimes, people operating outside the law may change their behaviour as a result of receiving a warning letter or an on-site visit from investigators.  Education of those who may inadvertently breach the Act is an important part of ensuring ongoing compliance.

As we have noted previously, the Authority is unlikely to make public comments about investigations activities.

Misrepresentation

You will be aware that clause 5.1 of the code of conduct states that a licensed adviser must not, in a false, fraudulent or deceptive manner, misrepresent or promote himself or herself, or his or her company.

To ensure that you meet your obligations under the code, you should regularly review your advertising and company website to ensure that the information is up to date and accurate.  For example, if a licensed adviser leaves your company, you should remove their details from your marketing material immediately.

Licensed advisers who are employees also have a responsibility to ensure that if they leave a firm and there is no remaining licensed adviser working at the firm, that all licensed adviser marketing collateral – particularly the Trademark – is removed from the company website.  Our suggestion would be that you make all requests to remove the information in writing, and that you keep a record of these.

Qualification feedback

We have received quite a lot of feedback from licensed advisers about the qualification.  This feedback has been wide-ranging, and very valuable.  Advisers have asked that we ensure the course has a high practical component, giving students a taste of the issues they will face in the real world.  Some have asked for assurance that the education provider will verify the students’ work is their own.  The qualification will address both of these concerns.

Others have stated that course graduates should only be able to apply for a provisional licence, rather than a full licence.

While we understand the reasoning behind this point of view, allowing graduates to apply for a provisional licence only would not open up a new pathway to licensing.  We are very aware that many people who wish to apply for a licence are not able to find a supervisor, particularly when the supervisor – provisional relationship is not an employer – employee relationship.  The number of licensed advisers is currently dropping and it is vital that we provide a new licensing pathway to ensure licensing remains viable.

The Immigration Advisers Licensing Act is very specific about how full, limited and provisional licences work and we cannot include a new licence type. 

The model we have adopted is very similar to Australia’s scheme which has been operating for many years.  All students will be assessed against the competency standards, as they are now, and must demonstrate that they meet them before passing the qualification.

Although graduates of the full course can immediately apply for a licence if they choose, this does not mean that we will licence graduates and then give them free rein to do as they please.  They will still need to adhere to the code of conduct, and demonstrate their competence at renewal time.  In addition, any breaches of the code may result in a complaint to the Immigration Advisers Complaints and Disciplinary Tribunal.

New competency standards

Thank you to everyone who provided comment on our draft competency standards.

Revised competency standards have now been approved by the Minister of Immigration and will come into force on 1 August 2012.

The 2012 competency standards will be available on our website soon.  We will provide a detailed description of them in next month’s newsletter.

Scanned signatures from immigration advisers 

Feedback has made Immigration New Zealand aware of significant delays faced by applicants represented by immigration advisers based in a different country from the applicant.

For example, where an immigration adviser is based in New Zealand but representing an applicant applying from the UK, the application form would have to be sent from the UK to New Zealand for the immigration adviser to sign, then back again to the UK for lodgement.

This process can cause significant delays.

INZ has developed a new process to allow immigration advisers to provide scanned signatures in some circumstances.

  1. The following process must be complied with:
    1. The original application form is scanned and sent to the immigration adviser.
    2. The immigration adviser provides their signature (and date).
    3. The immigration adviser sends the application form back to the applicant with a supplementary email confirming that the immigration adviser has signed and dated the relevant page of the form.
  2. The applicant then provides the following to the relevant INZ branch:
    1. The original form - signed and dated; and
    2. The scanned copy of the relevant page of the form (or the entire scanned form, including the relevant section) with the appropriate signature and date; and
    3. The supplementary email.

An original signature is still preferred, but in circumstances where this is not feasible this guidance may be followed.

Immigration law conference

The ninth annual immigration law conference will be held in Auckland on 11 and 12 August.  Here is the link to the conference brochure.

19 June numbers update

Licence holders - total
498
Full licence holders
390
Limited licence holders
29
Provisional licence holders
79
Adviser total onshore
336
Adviser total offshore
162
Trans Tasman Mutual Recognition Act (TTMRA) licensed
100
Refusals to date
17
District Court appeals against refusals decided
3
Complaints to Immigration Advisers Complaints and Disciplinary Tribunal
48