Penningtons, which specialises in immigration, reviewed data held by organisations including Universities UK, the British Accreditation Council and the UK Council for International Student Affairs before responding to the consultation, which closes today.
In its response, it warns that misleading data have been provided to support the government’s plans to overhaul the system.
According to Penningtons, a government consultation must satisfy three conditions to be lawful: there must be legitimate expectation that it is fair; all considerations raised by respondents must be taken into account; and adequate reasons must be provided for all policy decisions.
If taken to a judicial review, a judge would also consider whether correct procedure had been followed and whether the decision could be considered to be “rational”.
The firm argues that the consultation process is potentially unlawful on all counts.
The coalition government’s confusing rhetoric about minimising abuse of the visa system and reducing net immigration means that respondents do not know the purpose of the consultation, it says.
“It is simply impossible for there to be a fair consultation process when there is widespread confusion as to what the government wants to achieve,” it adds.
Penningtons also argues that data enclosed in a document accompanying the consultation, Types of Institution and Levels of Study, are “biased, inaccurate and untrustworthy”.
“It is our opinion that research and the data cited have been manipulated in order to try and justify the proposed changes,” it states in its response. It adds that references to the policy of reducing overall immigration are also misleading because the government has no control over the substantial majority of those who enter and leave the UK.
Meanwhile, the firm says that the existing data on migration are so incomplete that the government cannot rely on them when making policy decisions. “In our opinion, those decisions will be challengeable,” the firm concludes.
It says that there is a serious risk of a legal challenge if the new visa rules are implemented because of the “clear adverse ramifications” for education providers.
“We have found there to be almost universal concern among those with whom we have had contact,” it warns.
It also notes that in the past 12 months there have been three successful legal challenges to potentially unlawful changes to the immigration system, most recently over the introduction of temporary caps on immigrant numbers.