Licensed immigration advisers

Download more information

Guidelines on code of conduct requirements for written agreements with secondary clients

Purpose

  1. These are guidelines for adhering to the Licensed Immigration Advisers Code of Conduct 2008 (code of conduct) where an adviser is dealing with a client that they have a contract with, and in the course of providing services agreed under that contract the adviser must also provide direct immigration advice to another person, or act on behalf of another person in an immigration matter.
  2. These guidelines do not take the place of the code of conduct. All licensed advisers must continue to ensure that they comply with the code of conduct. These guidelines are designed to assist licensed immigration advisers to better understand their responsibilities in this area.

Scenarios

  1. Licensed immigration advisers may be engaged by a company or an individual to provide immigration advice relating to an employee, prospective employee or client of that company or individual. In such cases, the primary agreement (e.g. a contract) is with the company or individual who has engaged the licensed immigration adviser, and not directly with the visa or permit applicant. However, the licensed immigration adviser is likely to provide immigration advice to, or act on behalf of, the visa or permit applicant.
  2. This scenario may arise where the licensed immigration adviser is engaged by, for example:
    • an employer
    • a family member (sponsor/partner/other relative)
    • a recruitment agency
    • an educational institute
    • an offshore migration agency
    • a relocation company
    • a travel agency
    • a travel group co-ordinator.

Code of conduct requirement for a written agreement

  1. Under the code of conduct at 1.5 Written Agreements, a licensed immigration adviser must ensure that:
    1. before any agreement is entered into, clients are made aware, in writing and in plain language, of the terms
    2. agreements contain a full description of the services to be provided by the adviser; and
    3. clients are advised that they are entitled to seek independent legal advice before entering into agreements; and
    4. clients confirm in writing that they accept the terms of agreements; and
    5. changes to the terms of agreements are recorded and agreed in writing.

Who is my client?

  1. In the context of the code of conduct, a client is the recipient of the immigration advice provided by a licensed adviser, regardless of whether they pay a fee, or sign a contract. In any given scenario there may be more than one client. You must ensure that you uphold all of the code’s requirements in relation to all of your clients.
  2. Immigration advisers must decide on a case by case basis whether a person is their client. For example, it is likely that a person is your client if you are providing immigration advice directly to them and submitting a visa or permit application to Immigration New Zealand on their behalf, even if you have a written agreement for that service with another person (who is also your client).
  3. If your client passes on immigration advice to other people without your knowledge, such people are not considered your clients. Your duties to the original client are not affected by this.
  4. The Authority recommends that a licensed immigration adviser should make clear in their terms and conditions of business that any other person to whom immigration advice will be provided as a part of an agreement must also sign a written agreement. This makes the adviser’s obligations to all of their clients transparent.

What is a written agreement?

  1. A written agreement may be a contract, but does not have to be a contract.
  2. A written agreement must be sent to a client in writing and it must be agreed by the client in writing. Email is acceptable where the client has clearly accepted the terms of the agreement and typed their signature.
  3. A written agreement must simply contain all the requirements of the code of conduct, including those listed at 1.5 (written agreement), 8 (fees), and 9 (provision of complaints procedures). In summary, a written agreement should contain:
    1. A clear description of what services are to be provided by the licensed immigration adviser and what the process will be
    2. Clear information on what fees the client is responsible for (if any)
    3. Written authority from the client that the adviser may act on their behalf (if applicable)
    4. Clear information on what personal information will be disclosed to other parties, in particular, to Immigration New Zealand and any other client of the immigration adviser
    5. A copy of or a link to the code of conduct and complaints procedures on the Immigration Advisers Authority website
    6. A copy of, or a link to, the adviser’s own complaints procedure
    7. Advice that the client is entitled to seek independent legal advice before signing the written agreement.
  4. It is possible for a written agreement to meet these requirements and be no more than one to two pages long. You should ensure that you keep easily accessible records of any written agreement you make.

Where it is difficult to obtain a written agreement

  1. In a small number of scenarios it may be difficult to obtain the written agreement of a client, where, for example, there are a large number of visa applicants in a touring group, a client lives in a remote offshore location without email access and/or there is a tight turnaround time. The licensed immigration adviser should endeavour to meet their code obligations in all cases.

Dealing with conflicts of interest and confidentiality

  1. Under clause 6 of the code of conduct, a licensed adviser may represent clients with potential conflicts of interest if all affected clients agree to representation in writing once the potential conflicts have been identified and disclosed to them.
  2. On this basis, where you have a primary and secondary client, it may be appropriate to include in your written agreements with these clients the steps you would take if the relationship between these two clients were to dissolve prior to the completion of your 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.
  3. If a conflict of interest arises between an adviser’s clients, the adviser must address it on a case by case basis bearing mind any relevant contract(s) and written agreement(s) that have been signed as well as the code of conduct. Some relevant provisions of the code of conduct are likely to be:
    1. 1.1(c) on ensuring the clients’ interests are represented if the adviser cannot for any reason continue as a representative.
    2. 1.2 on maintaining the client’s confidentiality
    3. 1.5 on written agreements
    4. 6 on conflicts of interests.
  4. Licensed advisers should be careful to maintain client confidentiality even where clients are involved in the same immigration application. Generally a client’s information should only be shared with their express permission. An adviser should carefully consider what may be disclosed between clients.