Futile immigration matters
If a proposed application, appeal, request or claim is futile, grossly unfounded, or has little or no hope of success, a licensed immigration adviser must:
- advise the client in writing that, in the adviser’s opinion, the immigration matter is futile, grossly unfounded or has little or no hope of success, and
- if the client still wishes to make or lodge the immigration matter, obtain written acknowledgement from the client that they have been advised of the risks.
If an adviser receives instructions from a client regarding an immigration matter that they believe is futile, grossly unfounded or has little or no hope of success, then the adviser must advise the client, in writing, of this opinion and the risks of lodging or making such an immigration matter.
An adviser may choose not to take on a client. However, an adviser is not required to persuade a client not to pursue an immigration matter, especially where Immigration New Zealand or the Immigration and Protection Tribunal may have discretion.
If, after being informed of the risks, the client still wishes to go ahead with the immigration matter, they must be asked to acknowledge in writing that they have been informed of the risks and must instruct the adviser to go ahead.
For transparency, it is a good idea to include the adviser’s opinion that the matter is futile, and the client’s acknowledgment of that, in the written agreement with the client.
What has changed compared to the 2010 Code?
2010 Code – required advisers to encourage their client not to lodge a futile application
2014 Code – removes the requirement to encourage the client not to lodge a futile application. The client must still acknowledge that they have been advised of the risks.