Becoming a licensed immigration adviser

Download more information

• Brochures, Acts, Forms
• Policy documents
• Consultations
• Useful links

Immigration Advisers Authority
Policy Guideline

Scope of immigration advice

1. Summary

Whether “immigration advice”, as it is defined in the Immigration Advisers Licensing Act 2007, is being provided in a particular situation will depend on the facts and circumstances surrounding the interaction between the adviser and the person being advised. 

It is likely that “immigration advice” is provided in circumstances where, in relation to an immigration matter, an adviser uses his or her knowledge of or experience in immigration to provide assistance or direction or representation that is tailored to the particular circumstances of an individual being advised; and

• the assistance or direction is in the nature of guidance that involves offering an opinion or suggestions about possible entitlements the individual has, or avenues the individual might take; or
• the representation involves acting for a person and advocating for them if necessary.   

2. Introduction

The Immigration Advisers Licensing Act 2007 (the Act) regulates people who provide “immigration advice” relating to New Zealand.  People who provide immigration advice must be licensed, unless they are exempt. 

3. 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.

 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:

• those who provide immigration advice in an informal or family context only, so long as the advice is not provided systematically or for a fee;
• current members of the New Zealand Parliament and their staff who provide immigration advice within the scope of their employment agreement;
• foreign diplomats and consular staff in New Zealand accorded protection under certain Acts;
• New Zealand public service employees who provide immigration advice within the scope of their employment agreement;
• lawyers;
• people working (either employed or volunteers) for community law centres within New Zealand, where at least one lawyer is involved with the centre;
• people working (either employed or volunteers) for New Zealand citizens advice bureaux;
• people who provide immigration advice offshore who advise on student visa and permit applications only;
• people exempted by Regulations.

4. 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 that 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 assistance or direction is in the nature of guidance based on the adviser’s knowledge of or experience in immigration and involves offering an opinion or suggestions about possible entitlements the applicant has, or avenues the individual might take;
• the representation involves acting for a person and advocating for them if necessary. 

This is not an exhaustive list; not all immigration advice will contain all these points.

 

Note: Simply lodging an application for someone or acting on their behalf for the purpose of correspondence may not be “representation”. Education or recruitment agents may do this for their clients, or family members may do this for an applicant who does not read English. In the context of the Act, a person who is “representing” another person is likely to be authorised by the applicant person to act for them in relation to an immigration matter and to stand in for or speak for them. Merely performing administrative tasks, such as organising or retrieving information, on behalf of and under the direction of an applicant, is clerical work and is not “immigration advice” (see the discussion of clerical work below).    

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.

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 processing a visa or permit are likely to come within the definition of “clerical work” and so are unlikely to 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, that activity is likely to amount to “immigration advice”.  

Translation or interpreting services

Providing translation or interpreting services is not “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”.

4.  Summary

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

Interviewing a person in order only 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. But asking a person questions to determine which application form to complete may be providing “immigration advice”.

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