Having a written agreement
A licensed immigration adviser must ensure that:
- when they and the client decide to proceed, they provide the client with a written agreement
- before any written agreement is accepted, they explain all significant matters in the written agreement to the client
- all parties to a written agreement sign it, or confirm in writing that they accept it, and
- any changes to a written agreement are recorded and accepted in writing by all parties.
Deciding to proceed
Clause 16 provides that a written agreement is not required for an initial consultation but clause 18(a) requires that when the adviser and client decide to proceed they must enter into a written agreement. This requirement applies even when no fee is being charged.
Explain all significant matters
Clause 18(b) requires an adviser to explain all significant matters in the written agreement to the client before the agreement is accepted.
This step is an important part of the professional relationship and should be approached with thoroughness and care.
Each step of an adviser’s relationship with a client has potential for misunderstanding and a mismatch of expectations to occur. Having a well thought-out written agreement that meets the requirements of the Code will help reduce the scope for a mismatch of expectations.
Confusion over 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 helpful to explain the time uncertainty to clients.
An adviser should be able to produce a written record reflecting how the requirements of clause 18(b) - to explain all significant matters in the written agreement to the client - were met. The easiest way to do this is to have an acknowledgement in the written agreement that all significant matters have been explained.
Here is a decision from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to explaining all significant matters:
Musese v Min
All parties agree
A written agreement may not always be between a single client and a single adviser. The adviser may work for a company which will charge the fees in which case the company, rather than the adviser, may be the party to a written agreement. Other third parties may also be involved in the client’s immigration matter (such as family members, sponsors or employers).
Where there is more than one client involved in a particular matter, the adviser needs to decide who needs to accept a written agreement and then whether to have a single written agreement with the clients involved or separate agreements. Having different agreements may be more prudent in situations where confidentiality obligations could be breached if the same agreement was to be signed by all parties.
Where the adviser contracts with an employer of multiple migrants it may be appropriate to have a separate agreement with the employer, and separate agreementswith each migrant. In such a case:
- the agreement with the employer might typically provide for the employer to pay the adviser’s fees and expenses on the immigration cases intended to be covered by it, and for the adviser to keep the employer fully informed on the progress of those cases
- the agreement with each migrant might typically record the client’s authority to the adviser to act for them and, in the fee and disbursement clauses, that payment will be made by the migrant’s employer
- both agreements would contain other clauses about services to be performed and terms and conditions, particularly those required by clause 19.
Where advisers are entering into contractual arrangements involving three-way agreements or multiple agreements (possibly affecting an adviser’s legal liability and/or ability to enforce payment of fees among other things) the adviser may wish to seek legal advice on the form and content of their agreements.
In some scenarios, advisers may find it difficult to obtain a client’s signature on a written agreement. In such situations, an email from the client to the adviser stating that they accept the terms and conditions of the written agreement would suffice as confirming in writing that they accept it. Bear in mind, however, that in such situations the obligation to explain all significant matters in the written agreement remains.
What has changed compared to the 2010 Code?
2010 Code – required advisers to ensure that clients confirmed in writing that they accepted the terms of agreements
2014 Code – requires advisers to ensure that all parties to a written agreement sign it, or confirm in writing that they accept it.
Changes to written agreements
After the agreement has been accepted by all parties, there may be occasions where there is the need to make amendments to it. The adviser must ensure that all parties agree to any changes in writing.
Here are some of the many decisions from the Immigration Advisers Complaints and Disciplinary Tribunal that refer to written agreements: