Content of written agreements

Clause 19 sets out the minimum requirements for the content of a written agreement with the client.

Adviser name(s) and number(s)

It is the responsibility of the adviser to ensure that their name and licence number appear on any written agreement with a client. This helps to ensure that the client is clear about who will provide them with the advice, especially where the agreement is with a company or where there may be more than one adviser acting for the client. The adviser is always personally liable for any immigration advice they give.

Written authority

An adviser may only represent their client, be that to Immigration New Zealand, the Immigration and Protection Tribunal, or any other party, if they have the client’s written authority to do so. This authority is not required where advisers are engaged purely to provide the client with advice and will not be engaged to represent the client.

Here is a decision from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to the importance of written authority to act:

Musese v Min

Decision: [2013] NZIACDT 24 (4 April 2013) (PDF, 119 KB)(external link)

Penalty Decision: [2013] NZIACDT 60 (18 September 2013)(PDF, 96.7 KB)(external link)

Provisional licence limitations

Clause 8(c) requires provisional licence holders to explain to their client that a provisional licence allows a person to provide immigration advice in all immigration matters while working under the direct supervision of an immigration adviser with a full licence. Clause 19(c) requires this to be confirmed in the written agreement along with the supervisor’s name and licence number. Clause 19(c) ensures that clients know the supervisor will be made aware of their personal information and that the supervisor is obliged to keep it confidential. Clause 12(d) specifically requires supervisors to preserve the confidentiality of their provisional licence holder’s clients.

Limited licence limitations

Clause 8(b) requires limited licence holders to explain to their clients that a limited licence allows a person to provide immigration advice in relation to specified immigration matters and that thay may only provide advice in those areas. Clause 19(d) requires this to be confirmed in the written agreement along with a record of which particular areas the adviser is licensed to provide advice in.

Full description of services

To avoid any misunderstanding between the adviser and the client, it is important for an adviser to clearly set out what services they will be providing. The description of the services should be applicable to the individual client and their needs.

Some clients have unreasonable expectations of advisers, or misunderstand what the adviser is actually able to do. If a complaint is made by a client alleging that the adviser did not do what was promised, and the agreement clearly set out the scope of the work, it will be much easier to deal with the complaint internally and prevent it escalating.

The courts have long held that, where there is a difference in understanding between a professional person and his or her client about the terms of a written agreement, the word of the client is to be preferred to that of the professional. This reflects their inequality of expertise and the opportunity that the professional person has to avoid a misunderstanding by setting out in writing the extent of the services that he or she is to provide.

Fees to be charged

Advisers must provide a tailored and accurate description of any fees to be charged to the client. An adviser may choose to set a fixed fee for their service or to provide an hourly rate and an estimate of the time the services will take to provide.

See Fair and reasonable fees for more information.

Advisers may also wish to note how extra costs will be charged for, including that written agreement to these will be obtained from the client in accordance with clause 20(c).

GST or overseas tax or levy

Advisers should contact the Inland Revenue Department (IRD)(external link) directly, or an accountant, if they are unclear about GST requirements.

Here is a decision from the Immigration Advisers Complaints and Disciplinary Tribunal that refers to the importance of having fees in writing:

Juan v Ramos

Decision: [2015] NZIACDT 48 (7 May 2015) (PDF, 133KB)(external link)

Penalty Decision: [2016] NZIACDT 3 (14 January 2016) (PDF, 129 KB)(external link)

Disbursements to be charged

The written agreement must include any known or likely disbursements that the client will be responsible for.  Disbursements are supplementary costs which may include, among other things, Immigration New Zealand application fees, costs of obtaining medical certificates, costs of obtaining police certificates, courier costs, translation costs and interpreter costs.

Clause 19(g) recognises that an adviser may not always know all the disbursements that will be incurred at the beginning of their relationship with the client. However, the likely disbursements including the amounts, if known, or a reasonable estimate, need to be set out in the written agreement.

Clause 19(h) requires the adviser to set out clearly in the written agreement who will be responsible for paying the disbursements. There are generally three ways disbursements can be paid for:

• The adviser receives the money in advance from the client, holds it in the client account and then pays the disbursement.
• The adviser pays the disbursement and then seeks reimbursement from the client.
• The client pays the disbursement directly.

Payment terms and conditions

Payment terms and conditions should set out any advance payments required and all payment milestones, including the actual payable milestone for any payment received in advance.

Advisers should carefully consider what payment milestones will work for them. Fees may be paid either on completion of all of the services or in milestones.

Interest and refunds

Interest on unpaid accounts

The written agreement must specifically provide for any situation where the adviser wishes to charge interest on overdue accounts.

Refund policy

The written agreement must specifically set out the adviser’s refund policy. The refund policy should be clear and simple and in line with the Code. For example:

“Refunds will be assessed on the basis of what is fair and reasonable in the circumstances. Where a refund is due it will be paid within 20 working days of termination or completion of services.”

Conflicts of interest

Clause 5 requires the adviser to inform the client in writing of any conflict of interest and clause 6 prohibits the adviser from representing a client following this disclosure unless the client has given their written consent.

It is sufficient for the required disclosure and consent to be expressed in the written agreement. However, if the disclosure and consent have already occurred through letters or emails, a record of the conflict of interest must still be recorded in the written agreement.

This requirement is on-going, so if the conflict does not arise until sometime into the adviser-client relationship, the disclosure must be made in writing at that time and all parties would need to confirm in writing that they accept the change, as per clause 18(c).

Advisers may seek legal advice if they are ever uncertain about what to do about a conflict of interest.

Documents provided to client

The written agreement must include an acknowledgement that the client has received both the summary of licensed immigration advisers’ professional responsibilities and the adviser’s internal complaints procedure, and that the summary of licensed immigration advisers’ professional responsibilities has been explained to the client. This records that the adviser’s obligations under clause 17 have been met.