Professional responsibilities to clients

Defining the client

The client is the final recipient of the immigration advice provided by the adviser. This is regardless of whether they pay a fee, or sign the written agreement.

In situations where family members are included in an immigration application, all of the members of the family unit should also be considered by the adviser as clients, and are owed a duty of professional care. This applies even though only one family member may sign the written agreement and pay fees.

Other third parties with more remote associations may also, be involved in the client’s immigration matter. Third parties may seek immigration advice on behalf of the client in some situations, for example where:

• the third party is paying the adviser
• the client is offshore
• the third party is a family member, or employer.

If third parties are involved, advisers should have separate written agreements with both the third party and the client. This makes the adviser’s obligations to all parties transparent.

In some situations, confidentiality and potential conflicts of interest between the various clients or parties have to be managed, and the adviser must ensure that this is done with care.

Characteristics of the adviser-client relationship

The relationship between an adviser and their client has some key distinctive characteristics. These include:

• The adviser is in a position of holding the knowledge and expertise concerning New Zealand immigration legislation and instructions.
• The client has either little or no idea about New Zealand immigration legislation and instructions, and is relying on the expertise of the adviser to assist them.
• There may be cultural, language or gender barriers that need to be overcome.
• Acceptance of the written agreement will create a legal contract and will create certain expectations about what services the adviser will provide, and when and how they will provide these services.
• The client will provide information to the adviser that is both personal and confidential in nature. There is a clear expectation that the adviser will only use this information for the purposes of achieving an outcome regarding an immigration matter for the client.

Other considerations in the adviser-client relationship

Honesty and trustworthiness

Being honest underpins the code of conduct and is an important part of each of the clauses. Honesty is a fundamental ethical value upon which society and the legal system operates.

Being honest is morally correct and it is never right to lie to a client, Immigration New Zealand staff, a tribunal, Immigration Advisers Authority staff, a judge or any other person. Clients expect that the adviser they use is honest and trustworthy. There is no excuse for being dishonest with a client, even if the adviser thinks that this is what they want them to do.

Doing right by the client

Advisers have an ethical obligation to do right by their client. A relationship exists between the adviser and the client, and the client is relying on the adviser to do their best for them, so that they can depend on what the adviser says and does.

Fiduciary duty

When the adviser enters into a written agreement with the client, they are agreeing to act in the client’s best interests. The relationship with the client requires the adviser to make decisions, provide advice, and exercise power that will affect the client’s interests in a material way. This representative relationship is a fiduciary relationship, between the fiduciary (the adviser) and a principal (the client), and includes the following duties:

• maintaining confidentiality and discretion
• complete disclosure
• putting the client’s interests first
• acting with competence, diligence and prudence
• being honest and trustworthy.

Contractual duties

The process of entering into a contract with a client creates legal obligations that the adviser must fulfill. In the code of conduct the contract between an adviser and a client is referred to as a written agreement.

The exact nature of the obligations will depend entirely on the contractual arrangements  that the adviser and the client agree upon when they both accept the written agreement.

Even if not explicitly stated, it will be implied that the adviser will work in the client’s best interests, and that any work that they carry out will be done so competently.

Treating clients with care, respect, diligence and professionalism

Clause 1.1 of the code of conduct explicitly states that advisers must act with due care, diligence, respect and professionalism in relation to all of the items listed within sub-clauses 1.1a to g. In essence, this requirement recognises that advisers need positive relationships with their clients to:

• obtain information from their client in order to make good decisions
• inform the client of their options (informed consent)
• gain the confidence of their client
• ensure that the client understands what they are doing, so that they will follow their advice
• reduce the chances of having a complaint lodged against them.

Acknowledging the cultural norms and values of clients

Clause 1.1e of the code of conduct sets out the requirement to acknowledge the cultural norms and values of clients, in recognition of the fact that advisers are likely to encounter clients from a variety of cultural backgrounds when dealing with immigration matters.

The Office of Ethnic Affairs is part of the New Zealand government, and works to promote the benefits of ethnic diversity to develop prosperity for every New Zealander. Useful background information for advisers is available on their website.

Ethnicity Matters stresses the importance of remembering that diversity also exists within community groups. You may be able to see differences in your clients arising from:

• the level of information/services received prior to and on arrival in New Zealand
• settlement experiences
• different cultural or religious needs
• different needs of specific groups such as women, children, teenagers, or older people
• language and communication
• specific needs of refugees
• values and views (e.g. approaches to health/healing and well-being)
• social or economic exclusion within the host country.

It is also useful to remember that ethnic communities may identify with the following broad values:

• Collectivism: the well-being of the individual in the context of the collective is more important than individual well-being in isolation
• Hierarchy: elders and those who hold positions of esteem have influence and are viewed as the ‘spokespersons’ of a particular community
• Family: the immediate and wider family unit is important to wellbeing
• ‘Model migrant’: the perception that as a migrant one has to appear to be the model citizen, so negative incidents that may occur within a community are down-played
• Faith/Religion: for some ethnic communities, their faith forms a central part of the community identity
• Self-sufficiency (‘for us, by us’): a desire to contribute to New Zealand’s future, and to build self-sufficient lives for their communities and families.

As part of their continuing professional development (CPD), advisers should keep themselves informed about:

• Migration and labour market research undertaken in New Zealand, through sources such as the Ministry of Business, Innovation and Employment’s Labour & Immigration Research Centre webpage.
• General country conditions through sources such as:

• the United States Department of State Human Rights Reports
• the United Kingdom Home Office Border Agency Country of Origin Information reports
• the Australian Department of Foreign Affairs and Trade Country Briefs
• RefWorld
• European Country of Origin Information (ECOI)
• Human Security Gateway
• ReliefWeb.

Information about the Treaty of Waitangi and tikanga
(Māori customs and traditions)

Clause 1.1g of the code of conduct sets out the requirement on advisers, when requested, to facilitate the provision of information about the Treaty of Waitangi and tikanga (Māori customs and traditions) to clients.

Although it may seem like a vast and intimidating subject area to cover, there are a number of sources of information available to assist advisers to meet their professional practice obligations in this regard.

The Authority has collated a selection of resources for advisers to use in a section entitled The Treaty and Māori culture on its website.

Facilitating the provision of interpreters and translators

Clause 1.1f of the code of conduct sets out the requirement to facilitate the provision of interpreters and translators where appropriate, in recognition of the fact that advisers are likely to encounter language difficulties with clients when dealing with immigration matters, and must facilitate the provision of interpreters and translators to clients where appropriate.

All applications or requests to Immigration New Zealand must be made in English. This means that if an applicant or requestor does not speak, read or write in English they will need assistance by way of translators or interpreters to successfully complete the application or request process in relation to their immigration matter.

When interviewing and advising a client, the aim is for the adviser and the client to achieve a shared understanding of the relevant information and issues that pertain to the immigration matter on which the adviser is providing immigration advice.

The client needs to be able to convey to the adviser in detail, all of the relevant information and background that pertains to their situation, so that the adviser can assess and place this information appropriately in context. Throughout this process, the client must be able to understand the adviser’s questions, and to ask the adviser questions to clarify any matters that are unclear if needed. Advisers may also be dealing with concepts that are often difficult, even for clients who have no linguistic or cultural barriers, to overcome.

To participate effectively in an interview with an adviser without assistance, a client requires very good language skills, far better than those required to understand and answer just a few simple questions.

It is not always easy to assess whether a client’s language skills are at the standard required, to ensure that the adviser and client can achieve the shared understanding needed, and that the adviser can obtain the relevant information and background required in order to provide the client with immigration advice.

Most of the simple questions asked at the beginning of an interview, such as ‘what is your name’ and ‘where do you live’, are the kinds of questions that the client would often be asked, and to which they can generally respond anyway. The client’s responses to such questions are therefore not a clear guide as to his or her higher-level language abilities. Instead, try the following strategies when assessing whether a client needs an interpreter:

• ask the client if he or she needs an interpreter. They may indicate immediately that they require assistance.

• be alert for:
• repeated ‘don’t know’ responses
• inability to answer questions posed
• inappropriate responses to questions posed
• difficulty in formulating clear responses.
• keep in mind that non-verbal behaviour varies from culture to culture and person to person, but look out for:
• a puzzled expression
• lack of eye contact
• continual nodding of the head indicating agreement
• frequent (inappropriate) laughter.

If the need for an interpreter does not become clear until after an interview has commenced, the adviser should postpone the interview so that an interpreter can be arranged.

Where to get help

Trained interpreters can be accessed through a variety of national and regional interpreting bodies. As a starting point, an adviser seeking the assistance of an interpreter or translator, can access an online directory of translators and interpreters through the New Zealand Society of Translators and Interpreters (NZSTI) website.

Certified translators can also be accessed through the Translation Service which operates within the Department of Internal Affairs as a stand-alone business, and provides professional translation services to businesses, central and local government, education providers and private individuals. The Translation Service is an accredited agency for Immigration New Zealand, and more information can be obtained from the Department of Internal Affairs website.

Using a trained interpreter – pre-interview considerations

Consider the following strategies when preparing to use a trained interpreter at an interview:

• Brief the interpreter about the case. Go over any complex information that needs to be conveyed so that the interpreter has a clear understanding of this before the interview.
• Establish the objectives for the interview. Consider giving the interpreter a brief written overview.
• Establish the mode of interpreting (simultaneous/consecutive) and the need for the adviser to be kept informed, for example if there is extra discussion required for clarification.
• Stress the importance of confidentiality.

Using a trained interpreter – interview considerations

Consider the following strategies when using a trained interpreter at an interview:

• Arrange seating to allow direct communication between the adviser and the client – place the interpreter to one side.
• Introduce everyone present at the interview, and explain their various roles.
• Explain why information is being sought, and that questions will be asked to obtain the information required.
• Speak slowly and clearly, but naturally. Avoid jargon and slang and do not assume the client knows technical terms, even simple ones.
• Speak directly to the client and not to the interpreter – e.g. ‘Where did you live in Vietnam?’ not ‘Ask Mr Nguyen where he lived in Vietnam’. Ensure that the client is using the same technique when speaking to you.
• Maintain appropriate eye contact with the client, and observe responses closely. Remember the importance of non-verbal communication.
• Allow adequate time for the interpreter to interpret questions, and for the client to answer.
• Appreciate that the notion of ‘word for word’ or ‘verbatim’ interpreting is a myth, as no two languages equate sufficiently for this to occur. The interpreter will use his or her professional skills to take the words spoken in one language, and provide a representation of them in the other language, so as to best convey their sense and meaning given the overall context of the situation.
• Periodically throughout the interview, check the client’s understanding of the questions asked, and of the immigration advice given if applicable.
• Remember that the interview is a two-way process. It is equally important for the client to be able to ask questions and to check that he or she has understood the adviser (and been understood) as it is for the adviser to do so.
• Avoid any private conversations between the interpreter and the client, and also between the adviser and the interpreter, during the interview itself.
• If control slips in the interview, stop it straight away and re-establish ground rules.

Working with an untrained interpreter (language assistant)

It is often tempting to use a client’s family or friends to interpret for them - i.e. to act as a language assistant - rather than obtain the services of a trained interpreter, as this is often free or at a minimal cost.

It is critical to remember that the fact that a person is very competent in two languages does not mean they have the skills of an interpreter. Interpreters require professional training, and serious miscommunication is possible when essential professional skills are not present, and the risks not understood.

In particular, untrained language assistants may:

• over-generalise
• misunderstand concepts
• convey the message inaccurately
• add their own opinion
• answer for the client
• negotiate and argue
• re-interpret what both the client and the adviser say
• control, withhold or add to information.

Where a trained interpreter cannot be obtained and it is necessary to use an untrained language assistant, the following guidelines are useful to keep in mind:

• Keep language as uncomplicated as possible. Do not try to use ‘broken English’ as this can make a sentence less clear, and can be insulting.
• Do not raise matters that are confidential.
• Explain clearly to the language assistant what the client must do or what will happen. Check the language assistant fully understands what has been said, before they interpret for the client.
• If an available immigration advice professional has skills in the client’s language, that professional can be called in to assist.

As soon as possible, arrange to see the client again with a trained interpreter. The person providing the information, and the adviser are both at risk in situations where information is not correctly provided.

When these issues are not managed in an ideal or appropriate way, the adviser must record the fact there are issues with communication. This could be done by:

• making a notation on a document, recording that it was prepared without the assistance of an interpreter or translator
• making a file note
• having the client acknowledge in writing, that they have been advised of the recommendation to engage an interpreter or translator
• recording what the client’s instructions are in respect of this advice.

Effective communication is at the core of all professional relationships, and transmitting information accurately to Immigration New Zealand a key element of an adviser’s professional responsibilities. Dealing with language barriers is a professional skill and responsibility an adviser must take very seriously.

Costs of using an interpreter or translator

The code of conduct does not set out any requirement on advisers to bear the costs of using an interpreter or translator to either facilitate communication with a client, or translate documents that may need to be submitted as part of an immigration matter. As a matter of best practice when using an interpreter or translator, advisers should clearly set out to the client how these costs will be covered, including clearly itemising these as disbursements if required.

Performing services

The duty to perform one’s services is set out in clause 1.1a of the code of conduct, and means that an adviser is bound to act in accordance with what he or she undertook to do.

Issues can arise in the relationship between an adviser and their client because of a lack of shared understanding over what these undertakings may be which can lead to mismatched expectations. In such situations, the responsibility for eliminating a mismatch of expectations always lies with the professional, i.e. the adviser, who must:

• properly understand the client’s objectives and needs
• gather all client information needed to provide sound advice
• provide sound advice as to the client’s options and what they might entail, so that the client is able to make a properly informed decision.

To achieve these objectives, advisers need to employ a range of skills in their professional practice. The first of these involves interviewing/fact gathering skills, including:

• listening skills
• questioning skills
• the use of checklists and information gathering forms, but care must be taken to ensure that they are understood/completed properly.

The second of these involves advising skills, including:

• clearly explaining the law and policy relevant to the client’s situation
• clearly explaining the options available to the client as a result
• helping the client to appreciate the ramifications of the options
• helping the client to come to their own independent, properly informed decision as to what to do.

Both sets of skills involve an adviser being able to check how well the client actually understands, by asking questions and summarising their client’s understanding to minimise misunderstandings or unreasonable expectations. Textbooks and courses exist to help professionals develop their skills in these areas, and can be undertaken as part of an adviser’s continuing professional development (CPD) requirements.

Once the client decides to proceed, the adviser must ensure that the client understands:

• the general nature of the application/immigration process being embarked upon
• the likely timeframe for stages in the process and reaching an outcome
• the cost of the adviser’s services
• that there may be other associated costs (e.g. Immigration New Zealand application fees, costs of medical certificates and police certificates)
• all the other terms of the written agreement with the adviser.

Each step above has the potential for misunderstanding and mismatch of expectations to occur. The scope for this can be reduced however, by an adviser developing:

• an awareness of any barriers with the particular client that make achieving a shared understanding difficult
• their professional skills in the areas of interviewing/fact gathering and advising.

Having a written agreement and well thought-out procedures that meet the requirements of the code of conduct will also help reduce the scope for mismatch of expectations.

In particular, confusion about time and money are the most common matters that clients complain about, so it is important to be as clear as possible about each of these. Where an adviser has estimated how long things will take, but is relying on other decision-makers within the New Zealand immigration system to determine outcomes, it is critical to explain the element of time-uncertainty to clients.

Advisers should also summarise any immigration advice provided to the client in writing. This can help the client to understand it better, and can also help protect the adviser in case of a complaint. If the use of an interpreter is required in order to achieve a shared understanding, this should be arranged by the adviser.

Carrying out the lawful informed instructions of clients

The duty to carry out the lawful informed instructions of the client is set out in clause 1.1b of the code of conduct, and both works as a framework to define the extent of what the client wants, and authorises the adviser to deliver on these.

Not every last thing needs to be spelt out as things that are in the ordinary course of work covered by the instructions will be deemed included. On the other hand, advisers may not be covered for reimbursement if they do other work or commit the client in other ways that are

Working within limits of knowledge and skills

A client must be able to rely upon an adviser to have the knowledge and skills to understand the relevant immigration legislation and instructions that apply to the client’s particular personal circumstances.

Clause 1.6 of the code of conduct acknowledges this expectation by requiring an adviser to work within the scope of their individual knowledge and skills. An adviser’s ability, knowledge and skill to undertake and complete the client’s case can depend on, amongst other things, their:

• general background and level of relevant education
• level of experience working in the immigration advice industry
• the types of immigration matters they have dealt with
• commitment to continuing professional development.

If an adviser does not have the necessary knowledge or skill to deal with a particular case, they should refer the client to an adviser, or lawyer, who does. If an adviser takes on a case that they have no, or limited experience, in and handle it incompetently they could face disciplinary action for acting negiligently.

Setting fees that are fair and reasonable

Questions about fees are perhaps more likely than others to raise ethical considerations and dilemmas for advisers.

This is an area of natural conflict of interest between the adviser and their client: the adviser’s desire and need to be paid as much as possible for their work and their client’s desire to pay as little as they can.The code of conduct sets out in clause 8a that an adviser must set fees that are fair and reasonable in the circumstances. Clause 1.1d of the code of conduct also requires an adviser to work in a manner that does not necessarily increase costs.

Advisers need to read these two clauses together and make a judgement when establishing their fees, whether what they are intending to charge fairly represents the complexity of the client’s particular case. An adviser may charge a small fee if they were only sending off a few documents with an Immigration New Zealand application form completed by the client on one hand, whilst for a more complex case that requires research, legal submissions and a significant amount of time, an adviser could expect to charge significantly more. An assessment of whether the fees set are fair and reasonable under this requirement should take into account the perspective of the client as well as the adviser.

Meeting  the requirements of clause 1.5b of the code of conduct, by ensuring that agreements contain a full description of services to be provided by the adviser, is a good way of ensuring that any judgement call made when establishing fees is appropriate.

The Authority collects information regarding the fees an adviser charges. The median and average fees for advisers are listed on the Authority’s website for prospective clients or clients and advisers to check and compare.

Disclosure to clients

In addition to the general fiduciary duty of disclosure, the code of conduct also imposes specific obligations on immigration advisers to disclose certain things to the client that might affect them.

In particular, clause 7a requires an immigration adviser to disclose to clients any financial and non-financial interests in goods or services recommended or supplied to clients.

Confidentiality

The duty of confidentiality owed by an adviser to a client arises from a combination of the contractual obligations of the written agreement, the fiduciary relationship and the code of conduct. 

Clause 1.2a of the code of conduct requires an adviser to preserve the confidentiality of clients. In the Authority’s view, the term “confidential information” includes any personal information about a client or their affairs. A prudent and ethical adviser would start from an assumption that everything that a client tells them is confidential, unless the client has clearly indicated otherwise.

Advisers should also 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, and advisers should carefully consider what may be disclosed between clients.

Clause 1.2b of the code of conduct states that an adviser must not disclose confidential information, 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 without the client’s prior consent.

Read together, these clauses impose a positive duty at 1.2a, and a qualified restriction at 1.2b. The general law throws some further light on the scope of these requirements as outlined below:

• The duty of confidentiality can start even before the client formally becomes a client (i.e. before you make a contract). That is because the law says the duty arises as soon as the client puts trust in the professional (e.g. by telling the professional about their case in anticipation of the professional agreeing to act for the client). When there is trust placed, the law protects it with a duty (in this case, of confidentiality) even if there is no contract in existence, or ever made.
• The duty of confidentiality continues even after the contract with the client ends, and even after the client dies. The information remains ‘owned by the client’ (or the client’s personal representatives after the client’s death), and that ownership is never lost.
• It is possible to breach the duty of confidentiality either deliberately or carelessly. If the duty is broken, the adviser can be liable regardless of whether it was deliberate or negligent.
• The duty of confidentiality is not merely a duty to not communicate the client’s information to a third party without the client’s consent. It includes a duty not to misuse it – that is to say, the adviser cannot without the consent of the client, make any use of the client’s information or cause any use to be made of it by others other than for the client’s benefit.

Advisers should also consider the law on privacy and the Information Privacy Principles set out in the Privacy Act 1993 when reflecting on the duty of confidentiality.

There may be other circumstances where an adviser is released from the duty of confidentiality, but to ensure that this duty is not being breached, the Authority recommends that legal advice be taken by advisers on a case by case basis.

Conflicts of interest

The principle of good faith includes the concept of “undivided loyalty”. That is, the adviser owes a duty to his or her client to act in the client’s best interests, free from any competing loyalties to anyone else.

A conflict of interest arises when interests of your own, or another client of yours, may influence your judgement or actions towards a client.

Clause 6 of the code of conduct sets out the requirements on advisers in relation to actual or potential conflicts of interests, and can be read as follows:

Clause 6a:

• Unless the client agrees in writing subsequent to the adviser disclosing the potential conflict, an adviser must not represent a client who has potentially conflicting interests with another client of the adviser in relation to immigration matters.

Clause 6b:

• Unless the client agrees in writing to representation subsequent to the adviser disclosing the potential conflict, an adviser must not represent a client with whom he or she has a potential conflict of interest in relation to immigration matters.

Clause 6c:

• Unless the client agrees in writing to the arrangement subsequent to the adviser disclosing the potential conflict, an adviser must not enter into an arrangement with a client other than for the provision of immigration advice, if the arrangement creates a potential conflict of interest.

Where conflicts of interest arise, an adviser must address these on a case by case basis, bearing mind all relevant contract(s) and written agreement(s) that have been entered into as well as the code of conduct.

In some situations this may mean that the adviser can no longer represent the client. Where this situation eventuates, other relevant provisions of the code of conduct to consider are:

• clause 1.1c to ensure that the clients’ interests are represented if the adviser cannot for any reason continue as a representative
• clause 1.2a to maintain the client’s confidentiality.

Confirming actions and providing updates to clients

A client must be able to rely on an adviser to be diligent by doing their work carefully and in the agreed timeframe. Clause 3a of the code of conduct acknowledges this expectation by requiring an adviser to confirm to clients in writing when applications have been lodged, and provide them with ongoing timely updates.

Once an adviser has agreed to act for a client they must continually remind themselves to be diligent and careful in all dealings with the client.

If an adviser cannot give a case the diligence it deserves it should be referred to another adviser. Agreeing to take on a case when the adviser does not have the capacity to deal with it is unethical, and a potential breach of the code of conduct.

Returning passports and other personal documents to clients

The ability for clients to request their personal documents at any time, and the requirement for advisers to return these without delay is specified at clause 1.3b of the code of conduct. Personal documents are those that belong to the client and can include:

• passports
• birth, death and marriage certificates
• divorce papers
• photographs
• medical and x-ray certificates
• academic transcripts
• testimonials.

It is important for advisers to recognise that there are differences between ‘original documents’ and ‘documents’. Almost invariably, original documents will be the documents to which the requirements under the code of conduct apply.

Advisers cannot retain personal documents (including passports) provided by the client for any reason, if such a request is made. In particular, none of a client’s personal documents can be retained as security for payment of fees and out-of-pocket expenses.

It is good practice for advisers to confirm to clients that when they have received original documents which have been supplied to them. It is also good practice for advisers to request an acknowledgement from clients that they have received any original documents returned to them by the adviser. By giving and seeking such confirmation, advisers are protecting themselves if the original documents were to go missing.

The best option for the return of personal documents to meet the requirements of clause 1.3b is to use a courier that either uses a track and trace number, or requires a signature, before personal documents are handed over. Another method is to have the client come to the adviser, and sign a document acknowledging receipt of their personal documents, when they collect them in person. 

Even if no such request is made by the client, advisers should return original documents to clients as quickly as possible, after the adviser has used them. Such documents often have a personal value to the client, or the person to whom the document belongs, that transcends the monetary value of the document.

Dealing with difficult clients

It is recognised that clients can present a range of challenges to an adviser, some examples of which are outlined below:

• Advisers will come across clients who are a threat to their integrity; particularly clients who may want the adviser to submit a dishonest application.

• Some clients may not listen to, or understand, the advice an adviser is providing.
  

• Some clients can be emotionally difficult, including those who display threatening behaviour, anger, subtle manipulation, or unquestioning trust or are too distressed to make sensible decisions.

Dealing with complaints

The principles outlined in the earlier sections that make complaints less likely, are the same ones that help the adviser to deal with them.

It is also important for advisers to recognise and take responsibility for mistakes when they occur. Everyone makes mistakes, and must accept responsibility for these.

Clause 9 of the code of conduct requires advisers to have an established and robust internal complaints procedure. Clients must be made aware of the internal complaints procedure before any agreement is entered into.

In making a complaint, the client may be seeking financial compensation. However, many clients want an apology, to have the adviser understand their situation and have their concerns respected.

Advisers must be professional when dealing with a complaint. Some useful points for advisers to note are:

• saying that you understand how your client feels does not make you responsible for how they feel
• apologising for not having adequately explained something may take very little time
• never blame the client, unless they have been dishonest. If this is the case, you should have a written record that outlines all communication with the client.

Developing a robust internal complaints procedure, and adhering to it, may prevent a complaint from escalating to the Authority and the Tribunal. An escalated complaint could lead to disciplinary action if the complaint is upheld by the Tribunal. To assist advisers, the Authority has developed a sample internal complaints procedure, which they can use.

It is recommended that you make a provision for a mediation process within your internal complaints procedure. For example, you may list an alternative person in your office (or an independent contractor) that the client can contact if they do not wish to speak to you directly. You could also offer a meeting between yourself, the client, a mediator and any other person that the client may wish to have accompany them.

The Immigration Advisers Licensing Act 2007 outlines the process by which complaints made against licensed immigration advisers are managed.  Under this process, the Authority decides whether to accept or reject a complaint, and if accepted, refers the complaint to the Tribunal to decide.

The Tribunal may uphold a complaint and impose a disciplinary sanction only if it meets the legislative requirements set out in section 44 of the Act, which are:

• Section 44 (1) stipulates that any person may make a complaint to the Registrar concerning the provision of immigration advice by:
1. a licensed immigration adviser, or
2. a person who, not more than two years before the date of the complaint, was a licensed immigration adviser (a former licensed immigration adviser).
• Section 44 (2) sets out that the grounds for complaint may be any one or more of the following in relation to the immigration adviser or former licensed immigration against whom the complaint is made:
1. negligence
2. incompetence
3. incapacity
4. dishonest or misleading behaviour, or
5. a breach of the code of conduct.

Dealing with complaints

The principles outlined in the earlier sections that make complaints less likely, are the same ones that help the adviser to deal with them.

It is also important for advisers to recognise and take responsibility for mistakes when they occur. Everyone makes mistakes, and must accept responsibility for these.

Clause 9 of the code of conduct requires advisers to have an established and robust internal complaints procedure. Clients must be made aware of the internal complaints procedure before any agreement is entered into.

In making a complaint, the client may be seeking financial compensation. However, many clients want an apology, to have the adviser understand their situation and have their concerns respected.

Advisers must be professional when dealing with a complaint. Some useful points for advisers to note are:

• saying that you understand how your client feels does not make you responsible for how they feel
• apologising for not having adequately explained something may take very little time
• never blame the client, unless they have been dishonest. If this is the case, you should have a written record that outlines all communication with the client.

Developing a robust internal complaints procedure, and adhering to it, may prevent a complaint from escalating to the Authority and the Tribunal. An escalated complaint could lead to disciplinary action if the complaint is upheld by the Tribunal. To assist advisers, the Authority has developed a sample internal complaints procedure, which they can use.

It is recommended that you make a provision for a mediation process within your internal complaints procedure. For example, you may list an alternative person in your office (or an independent contractor) that the client can contact if they do not wish to speak to you directly. You could also offer a meeting between yourself, the client, a mediator and any other person that the client may wish to have accompany them.

The Immigration Advisers Licensing Act 2007 outlines the process by which complaints made against licensed immigration advisers are managed.  Under this process, the Authority decides whether to accept or reject a complaint, and if accepted, refers the complaint to the Tribunal to decide.

The Tribunal may uphold a complaint and impose a disciplinary sanction only if it meets the legislative requirements set out in section 44 of the Act, which are:

• Section 44 (1) stipulates that any person may make a complaint to the Registrar concerning the provision of immigration advice by:
1. a licensed immigration adviser, or
2. a person who, not more than two years before the date of the complaint, was a licensed immigration adviser (a former licensed immigration adviser).
• Section 44 (2) sets out that the grounds for complaint may be any one or more of the following in relation to the immigration adviser or former licensed immigration against whom the complaint is made:
1. negligence
2. incompetence
3. incapacity
4. dishonest or misleading behaviour, or
5. a breach of the code of conduct.

Ending a client relationship

Just as there are professional ethical issues to consider in relation to the formation and conduct of a client relationship, there are also professinal ethical issues to consider in the ending of such a relationship.

Ending the relationship by contract

A client relationship will normally end once the adviser has provided the agreed services.

These clauses should be clear and outline the circumstances under which the relationship may be terminated by the adviser or the client. Achieving such clarity can help avoid issues arising with the client and complaints being made to the Authority and the Tribunal.

Ending the relationship due to ethical considerations

Each client relationship is different and reflects the unique situation of that client’s particular circumstances. The following are some considerations that may influence whether or not an adviser considers ending the relationship due to ethical considerations:

• Is there reason to be doubtful about the client’s case?
• Will the client be disadvantaged by the ending of the relationship?
• How should the refund of any fees paid be managed in light of these considerations?