Overview of the licensed immigration advisers code of conduct 2010
The Code of Conduct has three key purposes:
- to set out a common statement of how advisers will behave when conducting their business with their clients - a statement to which all agree to subscribe, and by which all agree to be bound
- to guide advisers in their everyday business and professional decision-making, which enables them to meet the legitimate expectations of other stakeholders involved in the New Zealand immigration system
- to act as a written reference point in any complaints process or other proceedings
The principle of respect for persons and their rights is the basis for many of the ethical principles expressed in the code of conduct.
This finds expression in the non-exhaustive list of ethical principles noted below and the relevant clauses in the code of conduct that correspond to them:
- Advisers must act professionally with trust and confidence.
- The code of conduct obliges advisers to protect the trust and confidence that the client places in them. Clause 1 requires advisers to act with due care, diligence, respect and professionalism to:
- 1.1a perform his or her services
- 1.1b carry out the lawful informed instructions of clients.
- Other clauses in the code of conduct that oblige the adviser to protect the trust and confidence of the client include:
- 1.1d to work in a manner that does not unnecessarily increase costs
- 8a to set fees that are fair and reasonable in the circumstances
- 3 to maintain professional business practices
- 5.1a and b not misrepresent the adviser or the adviser’s business
- 9a to develop and maintain internal procedures for the resolution of complaints.
- Advisers must respect a client’s dignity, autonomy and right of self-determination.
- Clauses that are based on upholding respect for a client’s dignity include:
- 1.1 acting with care, respect, diligence and professionalism
- 1.1e acknowledging the cultural norms and values of clients
- 1.1g assisting clients to access information about the Treaty of Waitangi and tikanga (Maori customs and traditions)
- 2.1a acting in accordance with New Zealand laws
- 2.1g maintaining respectful and professional relationships
- 2.2 following respectful yet appropriate procedures for dealing with vexatious applications, appeals, requests and claims.
- Clauses that promote a client’s right of self-determination include those regarding the need to fully inform clients both before and during, the contract relationship, include:
- 1.4 a and b to display, explain and provide copy of the code of conduct
- 1.5 a to e to set out the agreements for services in writing, to give advice of entitlement to independent legal advice before acceptance, clients confirm in writing that they accept the terms and conditions of any agreements, and any changes are recorded in writing.
- Advisers must respect persons’ property rights.
- Clauses that are based on upholding respect for persons’ property rights include:
- 1.3a to keep and return documents securely
- 3c to obtain agreement in writing to any material increase in costs as soon as the increase is known to the adviser
- 4a to c to maintain a separate client bank account for fees paid in advance, draw fees only when properly due, and use funds lodged only for authorised purposes.
- Advisers must use and protect information with care.
- The use of information by an adviser on the behalf of a client relates to the concept of ‘undivided loyalty’ and ‘respect for the client’s property rights’ – in this sense the term property includes ‘information’.
- All information that comes into the adviser’s possession by reason of acting for the client and which relates to the interests of the client belongs to the client. This information cannot be used by the adviser for their own purposes without the informed consent of the client.
- The adviser also needs to protect the client’s information as outlined in the following clauses:
- 1.2a to preserve the confidentiality of clients
- 1.2b not disclose confidential information without the client’s prior consent, other than for the purposes of the administration of the Immigration Advisers Licensing Act 2007, the promotion of the immigration interests of clients to Immigration New Zealand, as required by law, or otherwise.
- Advisers must act in good faith and with responsibility.
- This requirement protects the trust and confidence that the client gives the adviser. Since the client lacks the opportunity or capacity to monitor the adviser’s good faith, the law steps in to require it.
- The adviser owes a duty to their client to act in the client’s best interests free from any competing loyalties to anyone else. Clauses 6a to c of the code of conduct address this with a focus on conflicts of interest. The code of conduct envisages that a conflict of interest can be of two types:
- acting in an immigration matter for more than one client whose interests are in conflict (a client – client conflict)
- acting for a client in an immigration matter (or entering into any arrangement with an immigration client) where one has a personal conflict of interest with the client (a client – adviser conflict).
- An adviser cannot act in either of these situations of conflict of interest without first obtaining the fully informed consent of the client.
- Therefore, if there is an actual or potential conflict of interests, the adviser must fully inform the client of all the facts that are material for the client to decide whether to permit the adviser to continue to act for them.
Professionalism and the code of conduct
The “golden rule” for advisers is to remember that it is a privilege, not a right, to have the ability to provide a service to the public.
Professionalism is important in the immigration advice industry because advisers are part of a group where the public needs to know that it can trust all the members of the profession.
For this reason, advisers need to remember to act professionally at all times, and for the avoidance of doubt, the manner in which they should do this is outlined in the code of conduct. The above clauses and sub clauses provide examples on ways of how an adviser can act professionally.
To act professionally the adviser also needs to demonstrate that he or she:
- brings integrity to all of their business dealings
- puts the client’s interests ahead of their own
- provides the benefits of their knowledge and skill to the client, but also knows the limits of their individual knowledge and skills
- does not act in a manner that will bring the profession into disrepute
- treats people with respect.
The code of conduct specifically outlines the obligations that advisers have to clients, and those that we have referred to as “stakeholders” in the New Zealand immigration system – i.e. the Minister of Immigration, Immigration New Zealand, the Immigration Advisers Authority and the immigration tribunals – i.e. the Immigration Protection Tribunal and the Immigration Advisers Complaints and Disciplinary Tribunal.
The professional responsibilities that an adviser must demonstrate in relation to each of these entities are detailed further below.