Who needs a licence?
Any individual providing New Zealand immigration advice either in New Zealand or offshore must be licensed unless explicitly exempt under the Immigration Advisers Licensing Act 2007 (the Act).
This policy outlines:
- the definition of immigration advice
- what immigration advice excludes
- who is exempt from requiring an immigration adviser licence.
Definition of immigration advice
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.
- 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
An immigration matter is defined as 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
The Act’s definition of immigration advice specifically excludes:
- providing information that is publicly available or that is prepared by the Ministry of Business, Innovation & Employment
- 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 becomes giving immigration advice when you tailor it to the particular circumstances of an individual or give guidance or assistance to the individual.
Publicly available information
Providing information from a publicly available source is not immigration advice. Examples of a publicly available source include the Immigration New Zealand website or the Immigration New Zealand Operational Manual.
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.
Translation and interpreting services
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
People who can give immigration advice without a licence are:
- those who provide immigration advice in an informal or family context only, so long as the advice is not provided systematically or for a fee
- current New Zealand Members of Parliament and their staff who provide immigration advice within the scope of their employment agreement
- foreign diplomats and consular staff accorded protection
- New Zealand public service employees who provide immigration advice within the scope of their employment agreement (all public service departments are listed in Schedule 1 of the State Services Act 1988)
- New Zealand lawyers
- people working (either employed or volunteers) for New Zealand community law centres, where at least one lawyer:
- is on the employing body of the community law centre
- is supervising (either employed or a volunteer) at the community law centre
- people working (either employed or volunteers) for New Zealand citizens advice bureaux
- people who provide immigration advice offshore about student visas only
- people exempted by Regulations (there are currently none).
New Zealand Lawyers
For the purpose of this exemption, a lawyer is a person who holds a current practising certificate as a Barrister or as a Barrister and Solicitor issued by the New Zealand Law Society.
Employees of a lawyer or a law firm who provide immigration advice in the 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 employee.
Lawyers are prohibited from applying for a licence under section 12(6) of the Act. The Immigration Advisers Authority will not accept licence applications from either lawyers or non-lawyer employees of law firms..
Offshore student advisers
Advisers who are offshore and provide advice in relation to student visa applications only are exempt. This exemption 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.
Employers, recruiters, education providers and travel sellers
Employers, recruiters, education providers and travel agents are not exempt and may become licensed. Those who do not wish to become licensed are free to assist their clients by providing them with publicly available information, as long as they are not interpreting that information or applying immigration instructions or law to a particular person.
Publicly available information can be provided without giving immigration advice by:
- describing to a potential migrant the eligibility criteria for particular immigration categories on the Immigration New Zealand (INZ) website or in Ministry of Business, Innovation & Employment publications
- ensuring that a potential migrant personally makes the decision about whether or not they will lodge an application for a visa under a particular category
- recording information provided by the potential migrant directly onto the required visa application form.
In all of these situations, the employer, recruiter, education provider or travel seller must record their details in the section of the visa application form entitled “Declaration by person assisting the applicant”.
If the client requests specific immigration advice, they should be referred to INZ, a licensed immigration adviser or someone legally entitled to give immigration advice because they are exempt.
Details of all licensed immigration advisers can be obtained from the register of licensed immigration advisers.
If you are uncertain about whether or not you are providing immigration advice in any particular situation, you should seek independent legal advice.