The applicant, Ukrainian national, arrived in Switzerland with her partner on 15 June 2024 and requested S status (equivalent to S status). The applicant mentioned that she was in Slovakia when the war broke on 24 February 2022 as she was visiting a friend, and she could not return home as there were no means of transport. She presented her passport, and a temporary protection status issued in Slovakia from 2022 to 2023. The SEM heard the applicant on the intention to reject the application and to remove her to Slovakia. The applicant reiterated the facts above and explained that she returned to Ukraine in September 2022 and entered into a relationship with B since December 2022. The applicant mentioned that her relationship with B. was stable and overcome all challenges related to the war and intended to marry at the Ukrainian diplomatic mission.

By decision of 20 September 2024, the SEM rejected the request and ordered the expulsion. The SEM reasoned the decision by referring primarily to the principle of subsidiarity and that fact that I assumed that protection status can be regained in Slovakia and on the fact that there was no risk of inhuman or degrading treatment upon return. On the relationship with B., the SEM concluded that despite it lasted for more than 2 years, it was neither a marriage nor it presented the characteristics of a stable cohabitation. The applicant appealed against the negative decision.

The court noted that the applicant falls under the eligible categories for temporary protection pursuant to point I(a) of the Federal Council's decision of 11 March 2022, as she is a Ukrainian national and was resident in Ukraine before 24 February 2022. However, according to the contested order, the SEM assumed that the applicant had a valid alternative form of protection in Slovakia, making it not dependent on Swiss protection due to the principle of subsidiarity. The SEM has not yet ruled on the applicant’s life partner's application for temporary protection and the court considered that it is for the SEM to complete its investigation and take a decision.

The court further considered that the SEM had insufficiently investigating the case because they did not clarify whether the applicant can obtain or regain protection in Slovakia, so she would be protected from being sent back to her home country before the end of the war. The court considered that since it is not clear whether the applicant has a valid alternative to Switzerland, then the contested decision was annulled and the case referred back for re-examination. The court consider that its conclusions are adopted regardless of the question of whether a cohabiting relationship similar to marriage exists between the applicant and her partner.