Policy Manual

Table of Contents

• Who Needs to be Licensed
• Not-for-Profit Policy
• The Licensing Process
• Fitness Policy
• English Language Policy
• Initial full and limited licence application policy
• Provisional Licence and Supervisor Policy
• Trans-Tasman Mutual Recognition Policy
• Licence Upgrade Policy
• Renewal and Fast-Track Renewal Policy
• The register of licensed immigration advisers
• Cancelled, suspended, voluntarily surrendered and expired licences

Who needs an immigration adviser licence?

Purpose

This policy outlines:

• the definitions of immigration advice matters,
• what immigration advice excludes
• who is exempt from requiring an immigration adviser licence.

Definition of immigration advice

The Immigration Advisers Licensing Act 2007 (the Act) regulates individuals who provide New Zealand immigration advice both within New Zealand and offshore.

Any individual providing immigration advice must be licensed unless explicitly exempt under the Act.

Section 7 of the Act states that immigration advice ‘means 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’.

Section 7 has three key elements, which define immigration advice:

• the person is using or purporting to use knowledge of or experience in immigration
• that knowledge or experience is used to advise, direct, assist or represent another person
• the advice, direction, assistance or representation is provided in regard to an immigration matter relating to New Zealand.

Definition of immigration matter

Section 5 of the Act defines immigration matter means any matter arising under or concerning the application of the Immigration Act 2009 (including any regulations or instructions made under that Act); and includes:

• an application or potential application for a residence class visa, temporary entry class visa, or transit visa
• a request or potential request for a special direction
• a claim for recognition as a refugee or a protected person, and any related appeal or matter
• a matter relating to immigration sponsorship
• a matter relating to an immigration obligation
• an appeal in relation to an immigration matter.

Immigration advice excludes

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

• providing information that is publically available or that is prepared by the Department of Labour
• directing a person to the Minister of Immigration, or to an immigration officer or a refugee and protection officer (within the meaning of the Immigration Act 2009), or to a list of licensed immigration advisers
• carrying out clerical work, translation or interpreting services or settlement services.

Providing information from a publicly available source is not immigration advice. Examples of a publically available source include  the Immigration New Zealand website or the Immigration New Zealand Operations Manual.

Providing information becomes giving immigration advice when you tailor it to the particular circumstances of an individual or gives guidance or assistance to the individual.

Clerical work relates to the provision of services in relation to an immigration matter, or to matters concerning sponsors, employers, and education providers, in which the main tasks involve all or any combination of the following.

• The recording, organising, storing, or retrieving of information.
• Computer or data entry.
• Recording information on any form, application, request, or claim on behalf and under the direction of another person.

Providing translation or interpreting services is not giving immigration advice.

Settlement services mean all or any of a range of targeted support services provided for migrants, refugees, protected persons, and their families to settle into the community, learn the language and to find out how to access essential community services. For example, this may include assisting migrants to find housing, schools for their children or information on public transport.

People exempt from licensing

Section 11 of the Act defines the classes of people who are exempt from the requirement to have an immigration adviser licence, who are: 

• persons who provide immigration advice in an informal or family context only, so long as the advice is not provided systematically or for a fee
• Members of Parliament, and members of their staff who provide immigration advice within the scope of their employment agreement
• foreign diplomats and consular staff accorded protection as such under the Diplomatic Privileges and Immunities Act 1968 or the Consular Privileges and Immunities Act 1971
• Employers of the public service who provide immigration advice within the scope of their employment agreement
• lawyers
• persons employed by or working as volunteers for community law centres (as defined in section 6 of the Lawyers and Conveyancers Act 2006), where at least 1 lawyer:
  • is on the employing body of the community law centre
  • is employed by or working as a volunteer for the community law centre in a supervisory capacity.
• persons employed by or working as volunteers for citizens advice bureaux
• persons who provide—
  • immigration advice offshore
  • advice only in respect of applications made under the Immigration Act 2009 for a temporary entry class visa—temporary visa—student visa.
• persons exempted by regulations made under section 12 of the Act.

 

Employees of the public service

Public service employees are exempt as per Schedule 1 of the State Services Act 1988.

Lawyers

For the purpose of section 11(e) of the Act, a lawyer is a person who holds a current practising certificate issued by the New Zealand Law Society as a Barrister sole or as a Barrister and Solicitor.

Lawyers are the only class of exempt persons who are also prohibited from applying for a licence under section 12 (6) of the Act.

Employees of a lawyer or a law firm who provide immigration advice in context of their employment agreement also fall within this exemption on the basis that the employee cannot give advice on their own account.

The exempt lawyer employing this person is responsible for the advice given to the client, not the person employed.

The Authority will not accept licence applications from either lawyers or non-lawyer employees of law firms.

Offshore student exemption

Section 11(h) of the Act exempt advisers who are offshore and provide advice in relation to student visa applications only. It does not allow an adviser to provide advice to secondary or related applicants on any other visa type such as work, visitor or guardian visas. If an offshore adviser wishes to provide advice on student and other visa types, they must apply for a licence.

Persons exempted by regulations

There are currently no persons exempted by regulations made under section 12 of the Act.