The case concerned an appeal submitted by a Ukrainian national against the SEM decision to reject her request for temporary protection (status S). In the contested decision, SEM has noted that A, the applicant, was a Ukrainian national who entered Switzerland in May 2024 and submitted an application for temporary protection to the Federal Asylum Centre where she was accommodated. The applicant mentioned that she left Ukraine for the first time in October 2022 and went in Bulgaria where she stayed for approximately 8 months. In Bulgaria, she received accommodation, food and a document, presumably a registration for temporary protection. She left Bulgaria and returned to Ukraine for approximately one year before coming to Switzerland. The SEM considered that she was a beneficiary of temporary protection in Bulgaria and could regain status there despite the absence and because temporary protection was still valid at the EU level.

The Federal Administrative Court reiterated in appeal that in accordance with the principle of subsidiarity: i) persons seeking protection with Ukrainian nationality do not receive temporary protection in Switzerland in the case of dual citizenship in the event of additional nationality of an EU/EFTA state and of Australia, New Zealand, Canada, the USA or the United Kingdom, in application of the principle of subsidiarity under refugee law and ii) protection status S is in principle excluded for a person if he or she already has protection status in an EU Member State.

The court highlighted that the above interpretations are applicable to persons who have a valid protection title in an EU state or to procedures in which the EU state that issued a protection title has consented to the transfer of the person. However, no such consent (or corresponding request) was given in respect of the applicant. Moreover, it was not clear from the file that the protection title which she allegedly received in Bulgaria (there are no documents regarding Bulgarian protection titles, only the applicant’s statements) is still valid.

In view of the fact that the applicant has not been in Bulgaria for over a year, the court considered that it cannot automatically be assumed that any protection title would still be valid. By taking into account these elements, the court considered that the above mentioned principle derived from case law are not applicable in this case and therefore do not fall under the above-cited practice of the Federal Administrative Court on the principle of subsidiarity.

As such, the court analysed whether the SEM correctly applied the principle of subsidiarity and if it was allowed to apply it in the present case. The court mentioned that the situation of a person who has an additional nationality is not easily comparable with the situation of a person who does not have any valid residence permit in a corresponding third country. The court further questioned whether a person who once had protection status in an EU state in the past, but who lost its validity after a permanent return to their home country (since the applicant stayed in Ukraine for about a year)has a valid alternative protection that justifies the application of the principle of subsidiarity. The court considered that it has to examine whether the SEM complied with its duty to clarify all circumstances and to reason its decision.

It found that the SEM failed when it assumed that the applicant could reactivate her Bulgarian protection status after entering this country and is therefore not dependent on the protection of Switzerland. The court explained that the SEM failed to make a distinction between the possibility of reactivating the protection status already obtained and the possibility of applying for temporary protection. In the absence of any inquiry to the Bulgarian authorities or through other means on whether the applicant has/had a Bulgarian protection title and that she will be able to regain any protection title which is no longer valid, the court stated that the SEM violated the principle of investigation and that such clarification is a must as a prerequisite for a decision to return the applicant to Bulgaria. The contested decision was annulled, and the case was referred back for re-examination by the SEM.