Commentary on provisions of the Act Section 45: Permission to appeal in relation to suspensive claims certified as clearly unfounded
This section makes provision for permission to appeal against a decision by the Secretary of State to certify a suspensive claim as clearly unfounded. Where the Secretary of State has rejected a suspensive claim and certified the claim as clearly unfounded, there is no automatic right of appeal against the refusal of the claim, instead a person may apply to the Upper Tribunal for permission to appeal the substantive decision (subsection (2)).
	Subsection (3) sets out the test to be applied by the Upper Tribunal when considering an application for permission to appeal in relation to a serious harm suspensive claim. The test is higher than that, in section 44(6)(a), applied by the Upper Tribunal when considering an appeal against the refusal of a claim which has not been certified as clearly unfounded. If it is to grant permission to appeal, the Upper Tribunal must consider whether there is compelling evidence that the person would, within the relevant period, face an obvious and real, imminent and foreseeable risk of serious and irreversible harm if removed to the safe third country specified in the removal notice.
	The threshold for granting permission to appeal the refusal of a removal conditions suspensive claim that has been certified as clearly unfounded is also higher than that for granting an appeal against the refusal of a removal conditions suspensive claim that has not been so certified. The Upper Tribunal may only grant permission to appeal where it considers that there is compelling evidence that the appellant does not meet the removal conditions (subsection (4)).
	Applications for permission to appeal under this section must be determined by the Upper Tribunal on the basis of written submissions and evidence, unless the Upper Tribunal considers oral submissions are necessary to secure that justice is done in a particular case (subsection (5)).
	Where the Upper Tribunal grants permission to appeal it will then go on to consider the substantive appeal against the Secretary of State’s decision to refuse a suspensive claim (subsection (6)).
	Subsection (7) provides that the right of appeal to the Court of Appeal in England and Wales or Northern Ireland or the Court of Session in Scotland against Upper Tribunal decisions (as provided for in section 13 of the Tribunals, Courts and Enforcement Act 2007) does not apply to decisions of the Tribunal on an appeal against the refusal to grant an application for permission to appeal a suspensive claim.