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(1) Where a human rights claim is made, in circumstances where the Secretary of State considers the nature of what is being alleged is such that the claim could also constitute a protection claim, it is appropriate for her to draw this to the attention of the person concerned, pointing out they may wish to make a protection claim. Indeed, so much would appear to be required, in the light of the Secretary of State's international obligations regarding refugees and those in need of humanitarian protection.
(2) There is no obligation on such a person to make a protection claim. The person concerned may decide to raise an alleged risk of serious harm, potentially falling within Article 3 of the ECHR, solely for the purpose of making an application for leave to remain in the United Kingdom that is centred on the private life aspects of Article 8, whether by reference to paragraph 276ADE(1)(vi) or outside the immigration rules. If so, the "serious harm" element of the claim falls to be considered in that context.
(4) On appeal against the refusal of a human rights claim, a person who has not made a protection claim will not be able to rely on the grounds set out in section 84(1) of the 2002 Act, but only on the ground specified in section 84(2).
The appellants are citizens of Nigeria, born respectively in 1988, 1980 and 2012. The third appellant is the son of the first and second appellants. The second appellant entered the United Kingdom in 2013 as a student, securing further leave to remain in that capacity until 8 January 2019. The first and third appellants entered the United Kingdom in November 2013, as dependants of the second appellant. They too secured further leave, in line with that of the second appellant, until January 2019.
In December 2018, the first appellant submitted a family and private life application, whilst the second appellant submitted a family and private life dependent spouse application; and the third appellant submitted a family and private life dependent child application.
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