The case concerned an Afghan national whose asylum application was rejected in 2020 but he was granted provisional admission because he could not be removed from the country and a residence permit was issued. On 11 March 2022 the applicant applied for being issued a foreign national passport, but his request was rejected. He further appealed and claimed that due to the conditions in his country of origin he cannot be expected to go back and be issued a passport. The Federal Administrative Court noted that a third country national who is without documents can request to be issued a passport.

According to Article 10(1) of the Foreign Nationals and Integration Act (FNIA), a person without documents is someone who does not have a valid copy of his or her country of origin and cannot be required to make an effort to issue or renew travel documents before the competent authorities of his country of origin or it is impossible to obtain travel documents. According to Article 10(3) vulnerable persons and asylum applicants cannot be required so.

The SEM justified the refusal of the application for issuance of a passport to the applicant because the later is not a recognised refugee and in possession of residence permit type B. According to SEM, it is reasonable and possible for the applicant to seek foreign travel documents from the competent authorities in his country of origin. The SEM considered that the impossibility of issuance of travel documents due to the takeover of power by the Taliban is a short-term impossibility and argued that the Afghan embassy in Geneva found a temporary solution to extend expired passport and extend them by means of a vignette or stamp.

The Federal Administrative Court noted that due to the current political situation in Afghanistan, the Afghan representation in Geneva was unable to issue passports to Afghan nationals residing in Switzerland since 17 August 2021, and it is not foreseeable that the cooperation between Switzerland and the new government will develop, thus it is not proven that issuance of a passport is possible in the near future. The Taliban regime was not recognised by any country and in view of the significant human rights violations by the Taliban it can not be expected that cooperation between Switzerland or other States will take place with the new government in Afghanistan. Thus, the Federal Administrative Court considered that obtaining travel documents will remain impossible in the longer term.

The applicant has also argued that he was never in possession of an Afghan passport and therefore his requests before the Afghan embassy in Geneva could not be successful because the Afghan representation can only temporarily extend existing and expired Afghan passports.

The Federal Administrative Court analysed detailed country of origin information which showed that there are many uncertainties, and the situation is too dangerous as to expect the applicant to travel back to Afghanistan for being issued a passport. Consequently, the Federal Administrative Court annulled the SEM decision and considered that the applicant is fulfilling the requirements of Article 10 (1)(b) of the FNIA and he can be considered a person without documents, thus he can request to be issued a foreign travel.