Commentary on provisions of the Act Section 46: Suspensive claims out of time
Sections 42 and 43 require suspensive claims to be submitted within eight days. This section makes provision in respect of out-of-time suspensive claims made before a person’s removal from the UK, where the person has not previously made a suspensive claim.
	On receipt of an out-of-time suspensive claim, subsection (2) requires that the Secretary of State must consider whether there were compelling reasons for the out-of-time claim, for example, because they were seriously ill. The Secretary of State must make a decision within four days, unless the period is extended under the power conferred by subsection (9).
	If, as a result of such consideration, the Secretary of State concludes that there were compelling reasons for the out-of-time claim, the Secretary of State must then come to a decision on the claim itself (subsection (3)).
	Subsection (4) provides for a review by the Upper Tribunal of the Secretary of State’s decision that there were no compelling reasons for the out-of-time claim. Where a person applies for a declaration from the Upper Tribunal and the Upper Tribunal concludes that there were compelling reasons for the out-of-time claim, the Upper Tribunal is required to make a declaration that there were compelling reasons for the out-of-time claim. The Upper Tribunal is not required to consider the substance of the claim at this stage, instead the effect of such a declaration is to require the Secretary of State to consider the substance of the out-of-time claim (subsection (6)).
	Applications for a declaration under subsection (4) must be determined by the Upper Tribunal on the basis of written submissions and evidence; it is therefore not open to the Upper Tribunal to consider oral submissions (subsection (5)(b)).
	A decision of the Upper Tribunal not to make a declaration under subsection (4) is not subject to appeal to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland as provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007 (subsection (7)).