File management and record keeping

One of the most valuable risk management tools that an adviser can use when dealing with clients is to proactively manage client files well. A well managed file is akin to a ‘useable trail’ of actions, which will benefit the adviser as well as the client.

Clause 3 of the code of conduct relates directly to the professional practice obligations of a licensed immigration adviser to maintain professional business practices relating to finances, records, documents, contracts and staff management. Keeping a well documented file also assists advisers to:

• ensure that the client’s interests can be represented by another person if for any reason (e.g. illness) the adviser cannot continue to act as their representative [clause 1.1c]
• ensure that the adviser works in a manner that does not unnecessarily increase costs [Clause 1.1d]
• confirm in writing to clients when applications have been lodged, with ongoing timely updates [clause 3a]
• maintain complete client records that track all transactions for a period of seven years and making those records available for inspection on request by the Authority [clause 3e]
• confirm in writing the details of material discussions with clients [clause 3f].

As a matter of best practice, the Authority recommends that advisers take the following actions in relation to the management of their unique client files.

1. Prepare a unique client file

Having taken instructions to proceed with an immigration matter, it is essential that an adviser opens a unique client file, and places all documentation in that file.

If questions arise, having a well-maintained unique client file will help to prove that issues were considered, advice given, and actions taken.

If no records exist the adviser will find it difficult to prove they did act properly, especially when they have an obligation to keep those records.

2. Maintain a file summary sheet for every file

Compliance with the requirement to keep a client informed can best be achieved by:

• using a File Summary Sheet for each client file; and
• maintaining a diary for recording deadlines for actions and timelines for file management tasks.

Sample file summary sheet

Provided is a Sample file summary sheet.

3. Retain a copy of each client’s application or other immigration matter

The word ‘application’ in this context should be read to mean:

• the application form(s)
• any sponsorship form that might need to accompany the application form
• all supporting documentation, e.g. certified copies of birth, marriage and death certificates, educational qualifications and passports, and
• any covering letter written to Immigration New Zealand by the client or adviser, when the application is submitted.

In respect of an ‘appeal’, ‘request’, ‘claim’ or ‘other representation’ any other relevant form(s), supporting documentation and covering letter submitted to Immigration New Zealand or the Immigration and Protection Tribunal should similarly be retained.

4. Retain copies of any legislation or instructions that are relevant to the client’s immigration matter

Given that changes to immigration instructions can occur frequently, and changes to immigration legislation occur periodically, it is useful to also place on the client’s file a copy of the relevant legislation or instructions that apply to their particular immigration matter.
This will also assist advisers to easily access the relevant legislation or policy based on which they provided their immigration advice at the time.

5. Retain copies of written communications

During the progress of an immigration matter, written communications may occur between the adviser and the client, Immigration New Zealand, or another relevant statutory authority. In relation to an immigration matter, written communications can include the following:

• written agreements
• letters
• faxes
• emails
• file notes, and
• evidence of the safe return of the client’s original documents.

6. Maintain contemporaneous file notes of oral communications

File notes are used to record:

• information provided, advice given and decisions made
• information about steps the adviser will take, that might otherwise go unrecorded, and
• the research on which the adviser bases their advice.

File notes are primarily for the benefit of the adviser and others working on the file. However, file notes often have a wider readership. If things go wrong, the client, the Authority, the Immigration Advisers Complaints and Disciplinary Tribunal or a court may all be potential readers.

The key reasons for using file notes are:

• the detail in the file notes (facts and research) forms the basis for all advice given to the client and actions taken, and it is critical to have that basis correctly recorded
• any person working on, or reviewing, the file needs to know the facts, what steps were taken (by the adviser and client) and what advice was given
• if someone else needs to review or take over the file for any reason, a lack of file notes can make it difficult for that person to follow what has happened, and may compromise their performance, and
• file notes support an adviser’s version of events, and can assist in presenting an effective defence in the event of a complaint or a claim.

Advisers should make file notes where there would otherwise be no written record. While writing file notes can be time consuming, and at times difficult, it is worth the effort. All file notes should identify the following:

• dates and times
• names of the people involved
• type of attendance (interview, meeting, telephone call), and
• subject matter discussed.

In an interview or meeting situation, any notes taken are likely to be incomplete. Usually what is required is not a summary of the course of the discussion, but rather a summary of the information acquired and any advice given.

Where the record of who said what or exactly what was said is likely to be important, it should be set out in the first person:

“John then told me that…”

“I then advised John that…”

This will be a much more reliable record than something more general like: “We discussed…”.

One note-taking method during an interview is to jot down key words and phrases to act as reminders of specific facts that seem important, and topics or subjects that need investigation. Notes covering these points provide a basis for the subsequent file note and a reminder of topics that need to be explored further.

After the interview, the notes taken should trigger recall of details, if the file note is prepared promptly. A suggested framework for organising the raw material from these notes is:

• facts
• issues (legislation or instructions)
• advice given, and
• next steps.

All files notes should be initialled (or signed) and dated when they are made. This is particularly important for notes that record the giving of advice and any client decisions made on the basis of that advice.

If an adviser is dictating a file note, the date and time at which the file note is being made should also be dictated, and the adviser should also sign and date the typed copy when it has been proof read.

Where a file note is potentially controversial, there is value in ensuring that it is transmitted electronically, to ensure that the adviser has proof that it was prepared at the time. Ideally the adviser would send it to the client, and give them the opportunity of confirming the record.

7. Financial documentation

Copies of the following should be kept on the client file:

• any invoices issued by the adviser to the client
• any receipts issued by the adviser to the client
• any client ledgers relating to the client
• any reconciliations of client ledgers relating to the client, and
• certified copies of all personal documents submitted as supporting documentation in regard to an immigration matter.

8. Ensure that all client records are stored securely

Advisers must ensure the security of all client records, in order to:

• protect the privacy and confidentiality of the client
• protect the client records within reason from theft, vandalism, natural disaster, manmade catastrophes, and accidental damage, and
• to ensure compliance with the requirements of clause 1.3a of the code of conduct in relation to personal documents.

There are a range of means available for an adviser to protect client records, including having a secure files room, a lockable safe or filing cabinet.

9. Maintain a filing system and retain client records for seven (7) years

Advisers can choose the method that they use to file client records. Many advisers simply store files in alphabetical order of the client’s family name, while others do this within each visa class, or by country of origin. Other custom-designed systems may also be used, but the primary considerations in respect of any filing system should be:

• that the system is well managed, and
• its ease of use.

In all situations, however, the adviser must ensure that the professional practice requirements on a licensed immigration adviser in relation to client records at clause 3e is adhered to:

• A licensed immigration adviser must maintain complete client records that track all transactions for a period of seven years and make those records available for inspection on request by the Authority.