INZ's New Operational Policy: Undermining Professional Representation and Burdening Employers

By Ava Sanchez, Licensed Immigration Adviser?@Visaplex.co.nz

As a licensed immigration adviser, I am deeply concerned about Immigration New Zealand's (INZ) recent operational policy change that, effective October 7, 2024, which restricts immigration professionals (Lawyers and Licensed Immigration Advisers) from engaging with Work and Income on behalf of employers during the labor market test.

?This operational policy mandates that accredited employers must directly interact with Work and Income for most ANZSCO Level 4 or 5 positions, effectively excluding immigration professionals from a critical component of the labor market testing process.?

While INZ asserts that "removing the ability for immigration professionals to engage with Work and Income on behalf of employers will encourage employers to genuinely test the domestic labor market before looking to hire a migrant worker," I contend that this operational policy is both misguided and potentially unlawful.?

It raises significant legal and practical concerns that could adversely affect not only our profession but also the employers, who are vital stakeholders in New Zealand's work visa policy and immigration system.?

Eroding Employers' Right to Professional Representation

Engagement with Work and Income for Level 4 and 5 roles is a fundamental part of the labor market test—a crucial prerequisite for employers seeking to obtain a Job Check for level 4 and 5 roles when no suitable New Zealand applicants are found.?

By unilaterally removing the ability of immigration professionals to engage with Work and Income on behalf of employers, INZ is not only restricting our professional practice but also infringing upon employers' right to choose their representation.?

Employers have the fundamental right to seek professional advice and assistance when navigating the complex regulatory requirements of New Zealand's immigration system. The labor market test is a complex process that involves stringent criteria and detailed communication with government agencies. By excluding immigration professionals from this engagement, INZ is effectively denying employers access to the expertise they need to comply with their legal obligations, while removing their right to representation.?

This operational policy imposes additional red tape on businesses already grappling with compliance, especially in a post-pandemic economy. Small and medium-sized businesses, lacking dedicated human resources or legal departments, are now expected to independently manage the process of engaging with Work and Income without the ability to be represented by immigration professionals.

This move increases the risk of inadvertent non-compliance. Instead of enhancing compliance, the policy may weaken it by overburdening employers and increasing the likelihood of errors.?

The primary role of licensed immigration advisers and lawyers in the LMT is to ensure that employers comply with all relevant legal requirements. Our involvement does not, as INZ suggests, dilute the genuineness of employer efforts to recruit locally. On the contrary, our guidance is crucial in helping employers understand and adhere to the stringent criteria set by INZ.

Licensed immigration advisers and lawyers are bound by strict codes of conduct and professional standards. Unlike unregulated third parties, we are subject to oversight by our respective regulatory bodies—the Immigration Advisers Authority (IAA) and the New Zealand Law Society (NZLS). This oversight ensures that our actions are transparent, ethical, and in line with legal requirements.

The suggestion that our involvement could somehow impede a genuine LMT process overlooks the fact that we are held to the highest professional standards. In reality, our involvement acts as a safeguard against potential misconduct by ensuring that all parties operate within the legal framework. Removing us from the equation increases the risk that employers, unfamiliar with the complexities of immigration law, might make mistakes or even unintentionally misrepresent their recruitment efforts

Suggesting Immigration Professionals Undermine The Labour Market Test Is Misguided And Insulting

In the announcement of the operational policy change, INZ asserts that "removing the ability for immigration professionals to engage with Work and Income on behalf of employers will encourage employers to genuinely test the domestic labor market before looking to hire a migrant worker,"

Turning that on its head, it seems INZ believes the engagement of immigration professionals with Work and Income on behalf of employers discourages employers from genuinely testing the domestic labor market before looking to hire a migrant worker.

How misguided.?

How insulting.

How unwarranted.

In my experience it is the immigration professional who impresses upon employers that they have a legal obligation to employ New Zealand citizens/residents ahead of migrants.

It seems INZ has made a blanket determination that no immigration professional can be trusted to act professionally.

The provision of immigration advice is a statutorily regulated industry.? Licensed Immigration Advisers are regulated by the Immigration Advisers Authority. New Zealand Lawyers are regulated by the New Zealand Law Society.?

Each profession has a statutory complaints procedure.?

If INZ has a concern that a Licensed Immigration Adviser is discouraging an employer from genuinely testing the domestic labor market before looking to hire a migrant worker then INZ should bring a complaint to the Immigration Advisers Authority.

If INZ has a concern that a New Zealand Lawyer is discouraging an employer from genuinely testing the domestic labor market before looking to hire a migrant worker then INZ should bring a complaint to the New Zealand Law Society.

What INZ should not do is introduce policy premised on a belief that all Licensed Immigration Advisers and all New Zealand Lawyers act unprofessionally.

INZ's attempt to usurp the statutory powers of the Immigration Advisers Authority and the New Zealand Law Society feels a bit petulant and arrogant.

?

Questioning the Legitimacy of INZ's Policy Change

INZ's announcement explicitly states that they are "removing the ability for immigration professionals to engage with Work and Income on behalf of employers." This bold assertion raises critical questions:?

1. Under What Authority? What legislative or regulatory provisions empower INZ to restrict licensed professionals from acting on behalf of their clients in this context? The Immigration Advisers Licensing Act 2007 and the Lawyers and Conveyancers Act 2006 delineate our roles and responsibilities. INZ's policy appears to circumvent these statutes, potentially acting beyond its legal mandate—raising concerns of ultra vires action.
2. Impact on Employers' Rights: By removing our ability to represent employers, INZ is simultaneously stripping employers of their right to choose qualified representation. This not only affects immigration professionals but also undermines employers' autonomy in managing their affairs.?
3. Consistency and Fairness: The operational policy permits recruitment agencies—entities not subject to the same regulatory standards as immigration advisers and lawyers—to continue engaging with Work and Income on behalf of employers. This inconsistency suggests a discriminatory approach that lacks a sound legal or ethical basis.

The way INZ has framed and implemented this operational policy change calls into question the fairness and legality of the decision. It seems to disregard the legislative framework governing professional representation and the rights of employers to seek assistance.?

Setting a Dangerous Precedent for the Industry?

The ramifications of this operational policy change extend far beyond its immediate impact; it sets a dangerous precedent for the entire immigration advice industry.?

If you don't remember anything else from this article, remember just this: If INZ can unilaterally exclude regulated professionals from engaging with a government agency on behalf of their clients during a critical stage of the process, what prevents them from imposing further restrictions in the future?

Consider the possibility of INZ deciding that certain visa categories—perhaps those perceived as straightforward—no longer require or permit the involvement of immigration professionals in specific interactions or stages of the process.?

They might argue that for these "simpler" tasks, professional immigration assistance is unnecessary, effectively barring us from supporting clients in these areas. Such actions would not only undermine our profession but also leave applicants and employers without access to their right of representation.?

For example, imagine INZ introducing an operational policy, stating that immigration professionals can no longer interact with educational institutions on behalf of student visa applicants. They might claim that this measure is necessary to safeguard the integrity of the enrollment process, ensuring that students independently choose their courses without external influence.?

This would not only undermine our profession but also deprive international students of expert guidance and representation.

Furthermore, INZ could begin dictating which types of professionals are deemed suitable to assist with various parts of the immigration process, favoring unregulated entities over licensed professionals.?

By selectively endorsing certain groups to undertake specific tasks, INZ would overstep its mandate, encroaching upon professional domains established and regulated by legislation. This could lead to a fragmented system with inconsistent advice and representation, harming applicants and the integrity of the immigration system.

These scenarios, while hypothetical, become increasingly plausible given the direction suggested by this operational policy change. If left unchallenged, such overreach could fundamentally alter the landscape of our profession, diminishing the value of regulated professions and the protections they afford to clients. The erosion of our role not only affects us as professionals but also compromises the support structure that clients rely on to navigate the complexities of immigration law.?

As an industry, we should be concerned about these potential developments. The blatant exclusion of immigration professionals from key parts of the immigration process, such as the ability to engage with WINZ on behalf of employers, could lead to a degradation of the standards and compliance mechanisms we have diligently worked to establish and uphold.

?Why We Must Challenge This Operational Policy?

Given these substantial concerns, it's crucial that we, as an industry, challenge this policy through all available avenues.?

Seeking a judicial review is a significant step that it is available. It would allow us to determine whether INZ has acted within its legal authority and whether this policy aligns with the principles of fairness, reasonableness, and legality that are fundamental to public administration.?

Filing a complaint with the Office of the Ombudsman is another viable path. The Ombudsman has the authority to investigate the administrative conduct of government agencies on grounds of maladministration or unreasonableness. Such an investigation might uncover procedural flaws or a lack of fairness in how this policy was developed and implemented.?

But legal avenues aren't our only recourse. Collaboration is essential. We need to unite with professional bodies like the New Zealand Association for Migration and Investment (NZAMI) and the New Zealand Law Society. In addition, it's imperative that chambers of commerce and other industry organizations voice their concerns.?

Employers across various sectors are stakeholders in this issue, and their businesses could be significantly impacted by this policy change.

We cannot sit idly by, while our profession is unjustly marginalized. By working together with these organizations, we can advocate more effectively for the rights of our industry.?

It's essential that these bodies take a definitive stand, pressing for a policy that respects the role of immigration professionals and acknowledges the practical needs of businesses. We all share a common goal: to maintain an immigration system that is fair, efficient, and supportive of New Zealand's economic well-being.

Way Forward?

This operational policy change marks a critical point for employers and immigration professionals alike. By unilaterally restricting our ability to engage with Work and Income on behalf of our clients, INZ is overstepping its mandate and infringing upon the rights of regulated professionals.

As licensed advisers and lawyers? are regulated by established legislation, in my opinion,? it is not within INZ's authority to circumvent our ability to represent clients or to deny employers their fundamental right to choose? representation.

?We must also be mindful of the broader implications. Allowing this precedent to stand opens the door to future restrictions that could further erode our profession. Today it's engagement with Work and Income; tomorrow, there could be limitations on interacting with educational institutions for student visas or restrictions on assisting with other visa categories.?

Such overreach threatens the pillars of our regulated professions and the protections they afford to clients.?

In the words of Justice Louis Brandeis, who famously said, "Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Transparency and accountability are cornerstones of a fair system. Policies that diminish the role of licensed professionals undermine these principles by reducing oversight and expert guidance in critical processes.?

The right to professional representation is a cornerstone of New Zealand's administrative and public law—a fundamental principle that ensures justice, fairness, and the effective functioning of our legal system. This right empowers individuals and businesses to navigate complex regulatory landscapes with the guidance of qualified professionals. Policies that undermine this principle not only infringe upon the rights of those we serve but also erode the integrity of the system itself.?

It is up to us—licensed immigration advisers, lawyers, employers, chambers of commerce, and industry organizations—to stand up for this foundational right.?

We must initiate a prompt and meaningful dialogue with Immigration New Zealand and advocate for a resolution that respects the essential role of professional representation in our immigration system.