Marking Their Own Homework, After the Deadline: Earned Settlement and the Timing of an Impact Assessment
Core paper on the timing obligations attaching to the promised Earned Settlement impact assessments, drawing on Bracking, Tameside and Gunning to argue that assessment must precede decision, with three falsifiable checkpoints for autumn 2026.
Summary
Whether the economic and equality impact assessments promised for Earned Settlement will arrive while still capable of performing the function the law assigns to them, before the implementing Immigration Rules are in substance settled, rather than as post hoc justification.
The public sector equality duty in s.149 of the Equality Act 2010 and Bracking [2013] EWCA Civ 1345; the Tameside duty ([1977] AC 1014); the Gunning principles and R (Moseley) v Haringey LBC [2014] UKSC 56; CP1448 and its foreword; the Home Affairs Committee report and the Lords JHAC report (HL Paper 13, paragraphs 126 to 131, 313 and 315 to 316); s.31(2A) of the Senior Courts Act 1981; s.3(2) of the Immigration Act 1971.
The Minister's recorded position, that impact assessments should be published when decisions are made, inverts the doctrinal sequence, which treats assessment as an antecedent of decision rather than an appendix; the public-record timeline shows commitment progressively hardening, from the White Paper announcement through the consultation foreword to the March 2026 speech and the Minister's evidence, while the assessments remain unpublished.
Three falsifiable checkpoints will test the argument: the late-August 2026 deadline for the Government's response to the Lords report, the expected autumn laying of the implementing rules, and whether the assessments appear before the Statement of Changes with enough clearance for Parliament and consultees to digest them. If the assessments precede the rules with a genuine interval and considered transitional provision, the questions raised largely dissolve.
Key Proposition
The legal value of the promised Earned Settlement impact assessments depends on when they enter the decision-making process: under Bracking, Tameside and Gunning, assessment is an antecedent of decision, not an appendix, and an assessment arriving only once the implementing rules are in substance fixed would satisfy the letter of the Government's publication commitment while defeating its purpose.
Key Observations
- Under Bracking, the public sector equality duty must be fulfilled before and at the time a policy is under consideration; an assessment produced after the decision has in substance been taken is a rearguard action that evidences non-performance rather than curing it.
- The Tameside duty presupposes acquisition of relevant information before decision: a minister who announces the destination and commissions the map afterwards has inverted the exercise.
- The Gunning principles require consultation at a formative stage and conscientious consideration of responses before decision; the ten-year baseline was announced six months before the consultation opened, and sequencing progressively narrowed the space within which 200,000 responses and the assessments themselves could influence the outcome.
- The Minister's formulation at paragraph 313 of the Lords report, that impact assessments should be published when decisions are made, states the inversion as method; an assessment has two audiences, and for Parliament publication is the performance, since under the negative-style procedure in s.3(2) of the Immigration Act 1971 a late assessment cannot realistically assist committees or Members before a change takes effect.
- The paper asserts no unlawfulness and states its hedges with equal prominence, including s.31(2A) of the Senior Courts Act 1981 and the fact that s.149 requires due regard rather than publication; its test is falsifiable, and if the assessments precede the rules with a genuine interval for scrutiny and considered transitional provision, the questions raised largely dissolve.
![Infographic summarising this paper, 'The Timing of an Impact Assessment'. It contrasts the Minister's recorded position (impact assessments should be published when decisions are made, HL Paper 13 paragraph 313) with the Court of Appeal's settled position (the duty must be performed before and at the time the policy is under consideration, Bracking [2013] EWCA Civ 1345). It sets out the order the law requires - evidence, assessment, policy choice, consultation, decision - citing Tameside, section 149 of the Equality Act 2010, Gunning and Moseley; a dated public-record timeline from the May 2025 White Paper to July 2026 with the impact assessments still unpublished; and three autumn 2026 checkpoints: the overdue Lords committee response due late August, the implementing rules expected in autumn, and whether the assessments appear before the Statement of Changes. Full analysis and sources are in the text below and in the PDF.](assets/swja-core-paper-08-impact-assessment-timing-summary.webp)
At a glance: the timing of the Earned Settlement impact assessments, as set out in this paper. The full text and PDF remain the authoritative source.
Access
This core paper was first published on the UK Constitutional Law Association (UKCLA) blog on 17 July 2026. The version archived at swja.uk is provided with acknowledgment that the article was first published on the UKCLA blog. The PDF is the authoritative publication record.
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Suggested Citation
Skilled Worker Justice Alliance (SWJA) (2026). Marking Their Own Homework, After the Deadline: Earned Settlement and the Timing of an Impact Assessment. SWJACP08. London: Skilled Worker Justice Alliance. Available at: https://swja.uk/publications/marking-their-own-homework-impact-assessment/ (Accessed: [insert date accessed]).
Prepared by Zonglin Lyu