The case concerned the eligibility for S status (equivalent to temporary protection) of a Ukrainian national who has been previously granted temporary protection in Poland.

The applicant, a Ukrainian national, applied for temporary protection in Switzerland in January 2024 and submitted a Ukrainian passport valid until 2033, an older Ukrainian passport and a letter from the Polish authorities dated «24-03-2022» («Powiadomienie o nadaniu numeru PESEL»). In the interviews, the applicant clarified that she left her hometown located in the Luhansk oblast at the beginning of the war and travelled to Poland on 15 March 2022, where she stayed until 21 December 2023. She further travelled to Switzerland allegedly because her cousin and husband were in Switzerland too. She received temporary protection in Poland, the PESEL number and 300 zloty from the Polish authorities on 24 March 2022. She alleged that her status ended in Poland on 24 March 2024, and she could not return there. Also, she claimed she cannot go back to Ukraine since Luhansk region has been occupied by the Russians.

The SEM rejected the request for protection by decision of 26 April 2024 and ordered the removal of the applicant. In the appeal against the SEM decision, the applicant alleged that she should be granted temporary protection because the SEM wrongly rejected the application on grounds that she did not belong to the eligible categories of persons for being granted temporary protection.

The Federal Administrative Court rejected the appeal and reiterated the legal framework for temporary protection in Switzerland. It mentioned that Article 4 of the Asylum Act provides that temporary protection can be granted to people in need of protection for the duration of a serious general threat, in particular during a war or civil war and in situations of general violence. In such case, the Federal Council decides the conditions and the criteria to be granted temporary protection to groups of people in need of protection (Article 66, paragraph 1 of the Asylum Act).

Based on Article 66 paragraph 1 of the Asylum Act, the Federal Council issued a general decree on 11 March 2022 granting temporary protection in connection with the situation in the Ukraine for the following categories of persons:

• Ukrainian citizens seeking protection and their family members (partners, minor children and other close relatives who were fully or partially supported at the time of their flight) who arrived from Ukraine where they were resident;
• persons seeking protection of other nationalities and stateless persons and their family members as defined in point (a) who obtained international or national protection status in the Ukraine;

Asylum seekers of other nationalities and stateless persons as well as their family members as defined in letter (a), who can prove with a valid short-stay or residence permit that they have a valid right of residence in Ukraine and are unable to return safely and permanently to their home countries.

The Federal Administrative Court stated that the principle of subsidiarity of asylum protection must be taken into account in applications for temporary protection and it means that a person of Ukrainian citizenship who was resident in Ukraine, is not dependent on the protection of Switzerland and accordingly cannot be described as in need of protection within the meaning of Article 4 of the Asylum Act the person concerned has a valid alternative protection outside Ukraine. In the present case, since the applicant had a Polish PESEL which is specifically issued (in addition to Polish and EU nationals) to Ukrainian nationals and their Ukrainian family members as well as their non-Ukrainian spouses who entered Poland via the Ukrainian border after 24 February 2022. A PESEL number enables (in addition to a stay in Poland) access to financial assistance and medical services and entitles the holder to work. Although the applicant alleged that leaving Poland and staying outside Poland equates with end of his status, however the Federal Administrative Court considered that Ukrainian citizens can re-obtain a PESEL number if they re-apply to obtain it by following the same procedure as first time. A renewal of the PESEL number allows a stay in Poland for 18 months. The applicant did not demonstrate to have re-applied for the PESEL number and to have been rejected. The applicant did not provide a credible explanation on reasons for which the Polish authorities would reject his application for a new PESEL and considered that the applicant can freely return to Poland and reapply for temporary protection.

The appeal was rejected and the court noted that when an application for temporary protection is rejected, the authorities continue examination for asylum. However, in the absence of an application for asylum, the court considered that the authorities had no reason to initiate the asylum procedure. In the absence of any reasons related to the non-refoulement principle, the court considered that the expulsion order was legally issued.