Becoming a licensed immigration adviser

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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

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:

Exclusions from the definition of “immigration advice”

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

 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:

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:

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

Example Scenario One – Assistance and Direction

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”.

 

Example Scenario Two – Representation

A person who uses his or her knowledge of or experience in immigration to lodge an application with Immigration New Zealand and act on behalf of the applicant in the progress of that application, and may make submissions or advocate on behalf of that person to Immigration New Zealand or to a Tribunal, is using his or her knowledge of immigration to represent that person in regard to an immigration matter relating to New Zealand and is providing “immigration advice”.

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.

Example Scenario Three – Publicly Available Information

A person who describes to another person the eligibility criteria for a particular immigration category or categories as they are represented on the Immigration New Zealand website or in a publication made available 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:

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:

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”.  

Example Scenario Four – Clerical Work

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, is undertaking “clerical work” and is not providing “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.