A Ukrainian national, BF, was detained on 15 September 2023 on grounds of suspicion of a criminal offence, and on 20 September 2023 he was informed that his residence will be terminated in Austria. By judgment of 16 January 2024, the regional court sentenced BF to a term of imprisonment for a period of two years - of which 16 months were suspended subject to a probationary period of three years - for committing the crime of smuggling of persons under Section 114 Paragraph 1, Paragraph 3 Item 2, Paragraph 4, First Case, of the Aliens Police Act. In an onward decision of 25 January 2024, BF was granted conditional parole for the remainder of the unconditional prison sentence of two months and twenty days pursuant to Section 46, Paragraph 1 of the Criminal Code after he had served part of the prison sentence of five months and ten days. It was determined that BF would be released on 24 February 2024.

By BFA decision of 5 February 2024, BF was not granted a "residence permit for special protection" pursuant to Section 57 of the Asylum Act 2005 and a return decision was issued against him, determining that his deportation to Ukraine was permissible pursuant to Section 46 of the Aliens Police Act.

On appeal, the Federal Administrative Court noted that the applicant is a Ukrainian national who resided in Ukraine prior to 24 February 2022 and was displaced from Ukraine due to the armed conflict as of 24 February 2022. The court analysed the grounds for exclusion of BF from temporary protection due to the committal of a criminal offence. The court stated that the exclusion grounds pursuant to Article 28(1) of the Temporary Protection Directive (TPD) are narrowly defined and letter b provides that a person can be excluded from temporary protection if there are compelling reasons to assume that he or she poses a danger to the security of the host member state or, in view of the fact that he or she has been convicted of a particularly serious crime, the person constitutes a danger to the general public in the host member state. The Federal Administrative Court stated that the applicant BF does not pose a danger to the security of the Republic of Austria because despite his conviction for smuggling of persons under Section 114(1), (3-2) and (4) of the Aliens Police Act, he has not committed a particularly serious crime. The court referred to previous case law of the administrative court to state that the crime of smuggling of persons and that of criminal organisation do not per se constitute a "particularly serious crime" within the meaning of Section 13 paragraph 2, second case, Asylum Law 2005 without the addition of special circumstances which would indicate that the offences committed by BF would also prove subjectively to be particularly serious. BF committed a criminal offence in Austria and was sentenced to a term of imprisonment for a period of two years – 16 months of which were suspended subject to a probationary period of three years – for committing the crime of human trafficking under Section 114 Paragraph 1, Paragraph 3 Item 2, Paragraph 4, First Case, of the Aliens Police Act.

The court noted that the persons smuggled were not subject to agony and the crime was not committed under serious circumstances, and he had a decent normal life before the crimes were committed, thus the crime committed by him should not be regarded as a particular serious crime. The court noted that the applicant acquired a temporary right of residence in the federal territory ex lege in accordance with Section 1 Z 1 of the Expellees Ordinance. Based on these considerations, the court stated that the return order against the applicant was unlawful.

However, since he left the federal territory on 24 February 2024 (to Czechia) and there were no indications of a planned return, or a short stay, his right of residence has expired in accordance with Section 4(3) of the Expellees Ordinance.