Frank Deliu: Migrants need a guide they can trust

A certain class of sophisticated migrants will choose a path less travelled.

Perhaps the most known quote related to immigration is that inscribed on the interior of the Statue of Liberty, from Emma Lazarus' The New Colossus which famously is supposed to give new immigrants to America the opportunity to see these as their first words when they arrive: "Give me your tired, your poor, your huddled masses yearning to breathe free."

Here in New Zealand we might want to instead explain to potential immigrants the extremely complicated process they face should they run foul of our complex system of immigration laws which include, among others, the Immigration Act 1987, Immigration Act Commencement Order 1987, Immigration (Refugee Processing) Regulations 1999, Immigration Regulations 1999, Immigration (Special Regularisation) Regulations 2000, Immigration (Transit Visas) Regulations 2002, not to mention Immigration New Zealand's Operations Manual policy.

Oh, and then there is the additional issue that as of this writing anyone can set up shop as an immigration agent. There is no need for any testing, certification or licensing.

No, I am not kidding - anyone can open up an office providing immigration agent services to the public.

And that has caused countless tales of naive foreigners losing their money but perhaps, more importantly, their hopes of coming or staying in this great land, because some incompetent or unscrupulous agent destroyed their dreams.

Now does that strike you as sensible? A byzantine immigration system basically serviced by mostly untrained, unprofessional and unaccountable agents. To be fair, I work with a few agents that are extremely competent and do an excellent job.

But I would not want my and my family's future in the hands of most of them. So what has our Government done?

They have introduced a new Immigration Advisers Licensing Act 2007 whereby immigration agents will finally be subjected to a professional licensing scheme. Sounds great - except when you read the fine print.

Firstly, overseas agents are not subject to regulation under the act and will not be for awhile. Secondly, as noted in a recent Herald article, "Fewer than 10 per cent of immigration advisers have obtained a licence and the deadline is looming. With 10 weeks to go before immigration advisers here will be required by law to be licensed, only 80 of the estimated 1200 advisers have obtained licences."

So what is to happen with the rest?

Some will stop working in this field altogether. Some might help prepare documents but not sign off on them.

Others may just ignore the act until its enforcement is shown to be serious.

Thirdly, as with any new regulatory scheme, it will take a long time before the bureaucrats can properly implement the system. The bottom line is the wild west days may be gone, but we are far from a proper system to safeguard migrants.

So those are the problems. What are potential solutions in the meantime?

The hardiest and most courageous of potential immigrants will just file their immigration documents themselves. Some will succeed. Some will fail.

In fact, according to one statistic, some 30 per cent of all skilled migrant applications will fail. And that includes those who seek the help of advisers. Other people will continue to seek the assistance of immigration agents in a 21st century version of Russian roulette.

However, a certain class of sophisticated migrants will choose a path less travelled. They will hire lawyers to help them.

Why a lawyer you ask? For one thing, lawyers are already professionally licensed and subject to strict oversight by the New Zealand Law Society. If a lawyer makes a mistake, he or she will be heavily punished.

If a lawyer takes your money, you can recover up to $100,000 from the fidelity fund set up "to provide for the compensation, in whole or in part, of persons who suffer pecuniary loss as a result of a claim event arising from the action of a lawyer".

Additionally, a lawyer has a university degree, further professional training, a character check and other safeguards to ensure he or she is a fit and proper person to practise law.

In other words, unlike an immigration agent, a lawyer invests years in his or her career before they can ever meet and help you. Plus, the system of oversight is in place now and has existed since time immemorial unlike the new untested system overseeing agents as of a month or so from now.

Clients truly are in safer hands with a lawyer who is exempt from licensing under the new Immigration Advisers Licensing Act 2007 exactly because of the safeguards that already exist for lawyers' clientele.

So, this gets us back to where we started. In the past, the voyage from Europe to America, New Zealand or other far-off places used to be a long, arduous and dangerous path.

There is a famous Native American saying that: "The cowards never started. The weak died along the way. Only the strong survived. These were the pioneers."

A migrant to America would know they have arrived by seeing Lady Liberty. Nowadays, the travel here is not so dangerous anymore. The real peril for an immigrant is whom they trust to guide them to our shores.

* Dr Frank Deliu is an expert in immigration law at Equity Law in Auckland.