What is clerical work?

A recent Tribunal decision has touched on what exactly is clerical work and therefore able to be done by a non-licensed or non-exempt person. To provide immigration advice without being licensed or exempt is an offence which can carry a penalty of up to 7 years in Jail or a fine of up to $100,000, or both.

So if you are an employer, education agent, friend or office worker for an immigration adviser, what are you legally allowed to do?

A recent immigration Advisers Complaints and Disciplinary Tribunal (IACDT), Immigration New Zealand (Calder) v Ahmed [2019] NZIACDT 18, outlined the scope of what constitutes clerical work and is therefore acceptable. A prominent law firm also had the opinion that “Completion of immigration applications and correspondence with INZ will almost always involve application of knowledge and therefore generally should be completed by licensed immigration advisers”.

To do an application within the scope that is allowed by clerical work puts the applicant at risk of decline because you are not legally allowed to include any document that you know will be useful and help the case officer make the correct decision. You can only include the basic documents that are asked for, and these documents do not support the fact that the applicant meets the relevant legal requirements for a visa.

Here is an outline to whether the staff perform only clerical work

The IACDT has stated that the following activities are acceptable. It is important to note that only the activities described are acceptable, extensions of them are not. For example, in (ii) forwarding the decision is acceptable, but providing feedback and interpretation of the decision is not

  • sending communications to clients attaching client agreements (for signature) and a copy of the Code;
  • forwarding to the client communications or decisions from Immigration New Zealand without comment, whether or not the client’s comments or documents in response were sought at the same time;
  • requests to the client for listed documents or forwarding a checklist of documents/information needed or identifying the documents missing from a response to a checklist previously sent and then requesting the missing documents, including comments on the print quality of copies previously sent or whether originals were needed (provided the checklist was a standard template from Immigration New Zealand or the adviser or followed a discussion with the adviser, and was not compiled by the employee);
  • requests to the client for further information in order to complete an initial assessment (provided the assessment is undertaken by the adviser);
  • requesting the client to provide a description of a past job;
  • seeking from the client and then advising Immigration New Zealand of the contact details of the client’s current/past employers (providing this does not involve assessing whether certain jobs meet the immigration criteria);
  • sending the client the contact details of Immigration New Zealand’s panel physician;
  • requesting the client to provide an update of progress in obtaining certain documents;
  • communication between the client and employees as to the fees and bank account details of the adviser’s company;
  • advising a client what documents had to be signed, by whom and of the place of signature;
  • analysing a client’s passport and creating a travel history sent to the client for comment;
  • passing onto the client advice from the adviser;
  • advising the client of Immigration New Zealand’s usual processing time;
  • the mere receipt of information/documents from the client;
  • any communication from the client to the adviser which has been copied to the employee, or any communication from the client to the employee which has been copied to the adviser;
  • requests made to Immigration New Zealand for extensions of time to respond to concerns expressed by the agency or to provide documents;
  • liaising between the client and Immigration New Zealand as to a suitable date for an interview;
  • acknowledging receipt of a letter from Immigration New Zealand and advising the agency it has been forwarded to the client for comment; and
  • drafting correspondence to Immigration New Zealand for review and signature by the adviser.

The above list of what is acceptable, or at least not worthy of disciplinary action,

is not exhaustive.