The applicants submitted applications for temporary protection in April 2022 and at the interview they mentioned to have moved to Canada in 2012 and lived there until 2020. They acquired Canadian citizenship around 2018. The children were both born in Canada, but probably also have Ukrainian citizenship. They returned to Ukraine in 2020 and are no longer willing to return there for multiple reasons, including that the COVID-19 vaccination is compulsory there and they oppose to it, because they do not want their children to go in a country where marijuana is legal and other personal reasons. Their friends and families lived in Ukraine and if they get S status, they can obtain a permanent job with an organisation for which one of them is volunteering.
The SEM rejected the application and ordered the expulsion, and the applicants appealed against this decision.
The Federal Administrative Court (FAC) noted that the SEM justified the negative decision by the fact that the applicants did not belong to the group of people entitled to that protection as defined by the Federal Council because the applicants were also holding Canadian citizenship. The SEM stated that the strict rejection of the Covid-19 vaccination and the absence of relatives and friends in Canada cannot overturn the assumption of a safe return to Canada. Also, the applicant’s commitment to a voluntary job was not capable of establishing a right of residence in Switzerland, but does demonstrate his ability find a job in Canada. Regarding the criticism of the legal status of marijuana in Canada, it should be noted that despite legalization, there were restrictions and rules that protected minors from substance abuse.
In the appeal, the applicants argued that they do not have the financial means to build a life in Canada, that they left because they did not have access to medical services and overall, it would be better for their family to stay in Switzerland since children go to school and moving again would not be reasonable. They considered that they meet the requirements that would be imposed on persons entitled to protection.
The FAC stated that neither the Asylum Act nor other legal provisions expressly stipulate on the legal situation of dual citizens or binational families and couples when granting temporary protection. The FAC noted however that the Asylum Act is based on the principle of subsidiarity of asylum protection and as such asylum applicants who have multiple nationalities are not dependent on the protection of a third country as long as they can find protection from persecution in one of the states of which they are a national. The same logic applies to temporary protection in accordance with Article 4 of the Asylum Law. As an example, if dual citizens who have both Ukrainian citizenship and the citizenship of another (persecution-proof) home country were to receive temporary protection in Switzerland, they would be in a better position than asylum seekers who have the same citizenship and are seeking protection from persecution in Switzerland. As such, the latter would be denied protection on the grounds that they can claim protection in another home country than the one against they seek protection from persecution.
The FAC considered that such a better position for those seeking temporary protection within the meaning of Art. 4 of the Asylum Law would be offensive and not in the spirit of the legislator. The wording of section I let. a of the general decree must therefore be interpreted teleologically in such a way that it corresponds to the meaning and purpose of temporary protection and also the principle of subsidiarity applicable in asylum and refugee law. The court concluded that on the procedure for temporary protection, it follows that a person with Ukrainian citizenship who was resident in Ukraine before 24 February 2022 is generally not dependent on the protection of Switzerland and therefore cannot be described as in need of protection within the meaning of Art. 4 Asylum Law if it has a valid protection alternative outside of Ukraine.
Based on above mentioned, the court concluded that that the applicants do not meet the requirements for the granting of temporary protection and the SEM rightly rejected the application.
The FAC also considered that there are no impediments to expulsion and confirmed the SEM decision.