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Immigration Consultancy – Yet Another Licensing Regime

31/03/2011

New Zealand has a long history of throwing licensing regimes at “problem” commercial activities – pawnbrokers are an early example, with their doings having first come under a regulatory regime in 1908.  In more recent times, motor vehicle dealers, real estate agents and massage parlour operators have been embraced, as have brothel-keepers.  The abiding culture is to regulate all to control the problem few. 

One of the most recent additions to this licensing culture is the immigration advisory industry.  The Immigration Advisers Licensing (“IAL”) Act came into force in mid-2007, criminalising the provision of paid advice or assistance to prospective emigrants to New Zealand unless the provider is either licensed or exempt from the licensing requirement.  The criminality of unlicensed activity is of some moment – a breach of the statutory regime carries a maximum penalty of seven years’ imprisonment and a fine of NZ$100,000.

That potential jail time comfortably exceeds the minimum – of 12 months – needed for a New Zealand crime to be an “extraditable offence”.  In other words, New Zealand could seek the extradition of a transgressor under the IAL Act from another country, assuming the existence of an extradition treaty with that country or otherwise that country’s willingness to extradite to New Zealand.

This is also of some moment because the IAL Act purports to create an extraterritorial jurisdiction for the New Zealand criminal justice system as regards both the licensing regime and the criminality created by the Act.

The crime of knowingly providing immigration advice while unlicensed (and unless exempt) is created by section 63 of the IAL Act and section 73 expressly provides that a person may be charged with a breach of section 63 (and others) “whether or not the offence or any part of it occurred within New Zealand”.  Accordingly, a person unlicensed under the IAL Act who for reward provides advice on emigration to New Zealand and who is outside the country when so doing apparently commits a serious crime against the laws of, and faces the prospect of extradition to, New Zealand.

When I was a law student, back in the 1970s, there was vigorous debate – at least in the common law world – on the validity of national laws purporting to create extraterritorial jurisdiction.  The position at common law itself was relatively clear – no state had such capacity.  For liability to sanction in a state, some part of the proscribed conduct must have occurred within the physical borders of that state.

Back then we were still in relative proximity to World War II and the relatively untested jurisdictional issues thrown up by post-war prosecutions of German and Japanese war criminals.  Subsequently, reservations about extraterritorial criminal liability have been abandoned in many common law countries and indeed worldwide.  Specific spheres which lend themselves to cross-border activity have provided an impetus.  International cartels and other anti-competitive behaviour, drug dealing, child prostitution and, nowadays, international terrorism have all been addressed by, amongst other measures, the imposition of extraterritorial jurisdiction for territorial sanctions.  The United States particularly has led the way.

But generally speaking laws purporting to impose extraterritorial jurisdiction address what is universally considered to be very bad conduct.  War crimes, the planning or execution of terrorist actions, trafficking in child and adolescent prostitutes – these are a long way removed on the scale of wrong-doing from giving advice on immigration matters.

To be blunt, it is risible that a state – in this case New Zealand – should presume to create criminal liability for the innocuous conduct of a non-citizen in another country.  I say “innocuous” because there is nothing inherently wrong with giving immigration advice or being paid for so doing.

Of course, the real objective of the IAL Act is to clamp down on the dodgy operators in this field – people motivated to prey on vulnerable would-be migrants by extracting exorbitant fees for illusionary results, people who are ready and willing to attempt the corruption of immigration officials in New Zealand, and so on.

Such people undoubtedly exist and should indeed be the subject of sanction.  But as always the heavy hand of licensing tars everyone with the same brush.  The underlying assumption with a licensing regime is that every actor in the industry is potentially a wrong-doer and the only way to deal with the bad guys is to make everyone jump through the licensing hoops.

That immigration advisers and consultants operating outside New Zealand were somehow different was acknowledged in the moratorium provided by the Act for their registration.  But that period has now passed and the IAL Act purports to impose criminal sanctions on anyone anywhere in the world who accepts payment to advise on or assist with an immigration application without being licensed under the Act.  It goes without saying that such unlicensed advisers also have no standing to represent the applicant before the New Zealand Immigration Service.

Becoming a licensed immigration adviser is no small matter, even for someone resident in New Zealand.  The government rule-writers have had a field day, with various licence categories having been created and onerous requirements imposed on both qualifying and maintaining licensed status.  And of course there are fees, currently nearing $2,000 in total.  And that’s just to get licensed.  To maintain that status currently costs another $2,000 or thereabouts each year, of which over half goes to fund the agency set up to police the system.

In a small, poor country – Bulgaria, for example – which might nevertheless be able to generate worthwhile immigrants for New Zealand, 2,000 New Zealand dollars represents at least two months’ net income for small business proprietors.  The licensing regime under the IAL Act thus represents a major barrier to entry into immigration advisory activity vis a vis New Zealand.

Which is a shame because in a country like Bulgaria, New Zealand is widely held in high regard and is, potentially at least, an attractive choice for prospective emigrants having skills (such as IT) which are sought after in New Zealand.  Apply that observation across a number of similar “donor” countries and it’s not hard to imagine the dampening effect of the IAL Act on quality emigration to New Zealand.  Of course if a prospective emigrant is determined enough he or she will find a way without the help of an adviser.  But the existence of advisers in that prospective emigrant’s home country will surely help to stimulate and multiply the process, via word of mouth quite apart from any advertising.

Of course, the Bulgarias of this world represent only a tiny fraction of New Zealand’s immigration pool, with a vastly greater number of prospects originating in Asia, especially your Chinas and Indias.  This is where the problems with dodgy immigration consultants arose – at least apropos New Zealand – and this is where the extraterritorial reach of the IAL Act is aimed.  But that’s licensing for you – one size fits all.  The bureaucratic behemoth created under the legislation has lurched to its feet and started moving.  It’s hard to see it being modified any time soon.

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