Working within limits of knowledge and skills
A client must be able to rely on 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.
A licensed immigration adviser must:
- work within the scope of their individual knowledge and skills, or under direct supervision if a provisional licence holder, or refer the client to another professional
- if a limited licence holder, explain to the client that a limited licence authorises them to provide immigration advice only in relation to specified matters, and they may provide advice only in those areas, and
- if a provisional licence holder, explain to the client that a provisional licence requires them to work under the direct supervision of a full licence holder, and they must seek advice from the supervisor whenever necessary.
Clause 8 requires an adviser to work within the scope of their individual knowledge and skills and to disclose to a client any limitations of their licence. An adviser’s ability, knowledge and skill to undertake their client’s immigration matter may depend on, amongst other things:
- their general background and level of relevant education
- their level of experience working in the immigration advice industry
- the types of immigration matters they have dealt with
- their commitment to continuing professional development.
The decision about whether or not to agree to act for a client is as much an ethical one as it is a decision about risk. It is not fair to the client for an adviser to take on a matter that they cannot handle.
If an adviser does not have the necessary knowledge or skill to deal with a particular matter, and they are not a provisional licence holder who can seek assistance from their supervisor, they should refer the client to an adviser or lawyer who does have the necessary knowledge and skills.
Clause 8 should not prevent an adviser taking on a new type of matter if their existing knowledge and skills mean that they could handle the matter competently.
Clause 8 also requires provisional and limited licence holders to explain to their clients what it means to hold that particular type of licence.
Provisional licence holders must explain that they work under the direct supervision of a full licence holder and will consult with that adviser whenever necessary.
A limited licence holder must explain to their clients the areas in which they are licensed to provide advice and that they may provide advice only in those areas.
Provisional and limited licence holders need to include these explanations in the written agreement, in accordance with clause 19(c) or (d).
What has changed compared to the 2010 Code?
2010 Code – required that advisers work within the scope of their knowledge and skills
2014 Code – requires advisers to work within the scope of their individual knowledge and skills, or under direct supervision if a provisional licence holder, or refer the client to another professional. Clauses 8(b) and 8(c) require limited and provisional licence holders to disclose the limitations of their licence to the client.
Here is a decision from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to working within the scope of individual knowledge and skills: