A., a Ukrainian national, was granted temporary protection in Italy from March 2022 until March 2023, after which she returned to Ukraine with her sister. She remained there until October 2025, when she again left Ukraine due to the war and moved to Switzerland, where her mother and sister reside. She applied for an S-status residence permit (the Swiss equivalent of temporary protection) arguing that she was no longer a beneficiary of any right of residence in another EU Member State.

On 27 May 2025, the State Secretariat for Migration (SEM) rejected her application for temporary protection and ordered her return by 19 July 2025 either to Italy or to a country where she would be admitted. SEM justified its negative decision on the basis of the principle of subsidiarity, which it considered applicable to temporary protection in the same way, mutatis mutandis, as it applies to international protection. Applied to temporary protection, this means that S status cannot be granted where the applicant has previously obtained effective protection equivalent to status S in another country and is not dependent on protection in Switzerland, irrespective of whether that protection ended due to a voluntary departure from the country that granted it. This applies where it is assumed that such protection can be regained in that other country.

In the present case, SEM noted that the applicant left Italy voluntarily and found no reasons to believe that she would not be able to receive protection in Italy if requested again, holding that a Ukrainian national benefits of freedom of movement within the Schengen area, thus allowing her to return to Italy and re-apply. Consequently, in view of the availability of alternative protection in Italy, SEM rejected the application for S status.

The applicant further appealed SEM's decision before the Federal Administrative Court (FAC), submitting that she no longer had a valid protection status in Italy, and that SEM should have obtained assurance of readmission from Italy before taking its decision. The applicant grounded her arguments on national case law according to which status S can be refused on basis of the principle of subsidiarity when the applicant is a dual citizen and there is a valid and not a mere hypothetical protection alternative in the second home state or if the person is in possession of a valid title in and EU/EFTA Member State which agreed to readmit the applicant. Since the applicant did not have dual citizenship, she alleged that SEM had erroneously rejected her application and failed to check whether she had a valid title and an alternative protection in Italy as well as whether readmission was possible.

On the first plea of the applicant regarding an alleged violation of the obligation to clarify facts and to reason its decision, the FAC noted that SEM correctly established that the applicant initially received temporary protection in Italy in 2022 pursuant to the Temporary Protection Directive (TPD) and the Council Implementing Decision 2022/382, and that there were no indications that Italy would not re-protect her, thus all facts were duly considered.

The court also clarified that applications for temporary protection in Switzerland may be refused if applicants have a valid alternative protection status in an EU/EFTA Member State. It reiterated that a Ukrainian national who resided in Ukraine prior to 24 February 2022 is entitled to receive temporary protection in a EU Member State pursuant to the TPD and the Council Implementing Decision 2022/382, while the Swiss legal framework provides access to temporary protection status for those in need, with a clear restriction related to the principle of subsidiarity. The court highlighted that the Federal Council already expressly mentioned in its press release of 11 March 2022, when status S was activated in Switzerland, that persons who have already been granted protection in another EU country are not eligible for status S in Switzerland. This has been further confirmed by FAC case law in December 2022.  

Given this, the court further examined whether it could be assumed that the applicant in the present case had an effective protection alternative in another country outside Ukraine. It found that she had been granted temporary protection and a residence permit in Italy, which constituted protection equivalent to status S and established a sufficient link with Italy. Even if the Italian residence title no longer existed because the applicant had left in December 2022, before its expiry in March 2023, it could be assumed that the protection would have been extended by Italy, particularly since such status has been extended twice by the Council of the European Union for displaced persons from Ukraine, until 4 March 2027. In such a case, even if the applicant voluntarily left, it could be assumed that she could regain protection in Italy, as there was no indication of a risk of penalties or exclusion for persons who temporarily returned to Ukraine.

Moreover, the FAC cited the CJEU judgment in Krasiliva (C-753/23, 27 February 2025) to note that EU law precludes national legislation according to which a person entitled to temporary protection must be refused the issuance of a residence permit if the person has applied for such residence permit in another Member State but has not received it yet. The court inferred from Article 16 of the Council Implementing Decision that the state which first granted temporary protection and a corresponding residence permit remains in principle responsible for granting such protection. The FAC thus concluded that it had been established with sufficient certainty that Italy would again grant temporary protection and that the applicant did not prove otherwise.

According to the court, the applicant held a Ukrainian passport allowing her to enter the Schengen area visa-free and travel within this area without restrictions, meaning that she could easily and legally return to Italy. Against this background, the court also clarified that SEM does not need to check whether there was a formal readmission agreement with that country.

The FAC dismissed the appeal and affirmed, based on the principle of subsidiarity, that Ukrainian nationals who were living in Ukraine prior to 24 February 2022 are not entitled to temporary protection in Switzerland if a valid alternative protection status is available to them in an EU/EFTA Member State. 

In the present case, the fact that the earlier permit had expired after the applicant voluntarily left Italy did not alter the existence of a valid protection alternative. Since Italy was still obliged to grant temporary protection to Ukrainians under EU law until 4 March 2027, the court assumed that, if she was to return to Italy, her status would be reinstated, or she would be able to successfully re-apply for protection in that country again.