Immigration group sees loophole in act

An immigration watchdog group says the Bill of Rights makes it exempt from the Immigration Advisers Licensing Act.

Kiwi Immigration Watch says the act compromises its rights and freedoms - and the Immigration Advisers Authority agrees.

Section 14 of the Bill of Rights on freedom of expression says that everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind in any form.

But the Immigration Advisers Licensing Act, which came into effect on May 4, requires anyone who gives immigration advice - whether directly or indirectly, and whether or not for gain or reward - to be licensed, unless exempt.

Local immigration agents operating without a licence face fines of up to $100,000 and imprisonment for up to seven years.

Allan Hughes, Kiwi Immigration Watch spokesman, said: "Freedom of speech and freedom to give advice, is one of the pillars of our New Zealand society and we believe the Bill of Rights supersedes any other legislation, including the Immigration Advisers Licensing Act.

"Representatives from the authority were at a loss for words when we suggested that the act would be going against the principles of sections 14 and 17 of the Bill of Rights."

The group had written to the authority and met with it last month, seeking a statement of exemption, said Mr Hughes.

The authority's team leader for licensing assessment, Melissa England, replied, saying the group didn't need to be licensed because "you do not appear to be giving immigration advice as set out in section 7 of the Immigration Advisers Licensing Act".

Registrar Barry Smedts said: "The act's definition, in essence, states that people have to consider whether they are knowingly advising, assisting, directing or representing another person about immigration matters concerning New Zealand. Anyone who meets this definition is providing immigration advice and must become licensed, unless exempt."

Lawyers, diplomats and MPs are exempt from licensing, but Mr Smedts said those who were uncertain should seek their own legal advice.

Immigration lawyer Kamil Lakshman said Kiwi Immigration Watch's argument was too far-fetched.

"Just from a common sense approach, if the group's argument was found to be true, then all registration boards in New Zealand will be in breach of the Bill of Rights. That surely cannot be the case," said Ms Lakshman.

"The freedom referred to in the Bill of Rights falls within the boundaries of non-professionalism."

The authority has posted a step-by-step guide to its licensing process on its website in a bid to get overseas immigration advisers to apply for their licence early, ahead of the May 4, 2010 deadline.

"We are keen to get as many applications in as early as possible, because our experience with the onshore licensing process showed that many advisers left it to the last minute to apply," said Mr Smedts.

There are 274 licensed advisers, including 25 based overseas, and the authority has 38 applications under assessment.

"There is a rigorous and comprehensive process each applicant has to undergo before we are satisfied that they meet our competency standards."