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On 9 February 2026, the Swiss Federal Administrative Court (FAC) delivered the judgment no. D-4601/2025 clarifying the scope of the principle of subsidiarity in the context of temporary protection for persons from Ukraine. The case concerned the refusal by the State Secretariat for Migration (SEM) to grant temporary protection in Switzerland to a Ukrainian national who had previously benefited from temporary protection in Italy.

The applicant had obtained temporary protection in Italy in March 2022, which remained valid until March 2023, and thereafter she returned to Ukraine. In April 2025, she entered Switzerland and applied for temporary protection. The SEM rejected her application and ordered her removal, considering that she could rely on protection previously granted in Italy. The applicant challenged this decision, arguing that her Italian protection status had expired and that Switzerland should have sought assurances of readmission from Italy before refusing protection. The Federal Administrative Court (FAC) dismissed the appeal and confirmed that, under the principle of subsidiarity, temporary protection in Switzerland may be refused where the applicant already has, or can reasonably obtain, a valid protection status in an EU/EFTA Member State. It clarified that no formal readmission agreement or prior assurance from the other State is required in such circumstances.

The Court found that Italy constituted a valid alternative protection country, as it had granted the applicant temporary protection equivalent to the Swiss “S” status and remains obliged under EU law to continue providing such protection to Ukrainian nationals. The expiry of the applicant’s previous Italian status, resulting from her voluntary departure, did not alter this assessment, as she could lawfully return and reobtain protection in Italy. Accordingly, the Court held that the existence of a valid alternative protection status excludes entitlement to Swiss temporary protection, without the need for prior confirmation of readmission, provided that the person concerned can lawfully return to the third State. The judgment was final and not subject to appeal before the Swiss Federal Supreme Court.
 

Unofficial translation by the EWLU team

We would like to thank Helen Zemp for bringing this case to our attention

On 26 March 2026, the Court of Justice of the European Union (CJEU) delivered its judgment in the Case C-202/25 (Tadmur), following a request for a preliminary ruling from the District Court of The Hague, sitting in Roermond (Den Haag, zittingsplaats Roermond). The case concerned the interpretation of the Directive 2008/115/EC (the “Return Directive’’) in conjunction with the Directive 2011/95/EU (the “Qualification Directive’’), on whether a Member State is required to adopt a return decision in respect of a third-country national whose subsidiary protection status has been revoked and where removal is precluded by virtue of the principle of non-refoulement.

The Court held that Article 6(1) of Directive 2008/115 requires Member States, in principle, to issue a return decision once the unlawful stay of a third-country national has been established. However, that obligation must comply with Article 5 of the Return Directive, which requires respect for the principle of non-refoulement, as guaranteed by Article19(2) of the Charter of Fundamental Rights of the European Union. In that regard, the Court clarified that Article 5 precludes not only the removal of a third-country national, but also the adoption of a return decision where such decision is contrary to the principle of non-refoulement. That obligation applies at the stage of adopting the return decision and cannot be remedied by merely postponing removal pursuant to Article 9(1)(a) of the Return Directive.

The Court further held that a return decision necessarily entails the designation of a country of destination, within the meaning of Article 3 of Directive 2008/115, and that it is therefore legally impossible to adopt such a decision where no destination can be identified in compliance with Article 5 thereof. Consequently, Member States may not circumvent those requirements by adopting under national law a decision obliging the person concerned to leave the territory without designating a country of destination or permitting removal, since such a measure constitutes an ‘obligation to return’ within the meaning of that directive.

The Court also noted that, while the revocation of subsidiary protection under Article 19(3)(a) of Directive 2011/95/EU, read in conjunction with Article 17(1) thereof, results in the loss of the rights attached to international protection, it does not in itself justify removal in breach of the principle of non-refoulement. However, a return decision may be adopted where a lawful alternative country of destination, within the meaning of Article 3(3) of Directive 2008/115, is identified, including a country of transit or another third country to which the person may voluntarily return, provided that such return complies with Article 5 of Return Directive and with the EU Charter.

On 27 February 2026, the Court of First Instance of Antwerp, Family Court Section (Rechtbank van eerste aanleg Antwerpen, familierechtbank) annulled a decision of the civil registrar of the City of Antwerp revoking the Belgian nationality of a child born in Belgium of Palestinian parents recognised as refugees.

The child had initially been granted Belgian nationality pursuant to Article 10§1 of the Belgian Nationality Code to prevent statelessness. On 5 March 2024, the registrar of Antwerp revoked the child’s nationality on the grounds that the child could acquire Palestinian nationality through the parents or via the Palestinian mission. As a result, the child’s Belgian passport and Kids-ID were annulled. The parents contested the revocation, maintaining that as recognised refugees it was not feasible for them to secure Palestinian nationality for their child. The City of Antwerp and the Public Prosecutor’s Office argued that the claim should be dismissed, citing a potential “pull effect” and alleged abuse of the nationality rules.

The Court of First Instance annulled the revocation holding that under Article 10§3 of the Belgian Nationality Code (WBN) nationality may only be withdrawn if it is established beyond doubt that the child possesses another nationality. Hence, given the absence of formal Palestinian nationality legislation and the impossibility for refugees to register remotely, the child could not realistically acquire another nationality. The court further held that any alleged abuse of Belgian nationality rules by the parents could not justify the deprivation of the child’s nationality, highlighting that the best interests of the child (Article 22bis of the Constitution) must prevail.

According to the Court’s press release, five similar decisions from the city register were annulled by the Court on the same grounds.

Unofficial translation by the EWLU team

On 26 February 2026, the Belgian Constitutional Court delivered its judgments nos. 23/2026 and 24/2026, suspending, respectively, provisions of two Laws of 14 July 2025 reforming the reception regime for asylum applicants, and provisions of the Act of 18 of July 2025 introducing stricter conditions for family reunification between beneficiaries of subsidiary protection and their family members. In both cases, the Court considered that the immediate application of the contested measures was likely to cause an irreparable harm and raised doubts as to their compatibility with EU law and fundamental rights. It therefore referred several preliminary questions to the CJEU and ordered the suspension of the provisions pending the CJEU judgment.

In judgment No. 23/2026, the Court suspended provisions of two Laws of 14 July 2025 which allow Fedasil (Belgian Federal Agency for the Reception of Asylum Seekers) to refuse material assistance to asylum applicants  who already enjoy international protection in another EU Member State, and which cancel  the possibility of granting reception support in the form of financial assistance in special circumstances. The Court considered that the immediate application of these provisions could cause serious and irreparable harm, and referred to the CJEU the question on whether EU law allows an application by a person already granted protection in another Member State, to be treated as a “subsequent application” under Directive 2013/32/EU, thereby permitting refusal of material assistance under Directive 2013/33/EU.

In judgment No. 24/2026, the Court examined provisions of the Act of 18 July 2025 introducing stricter requirements for family reunification between beneficiaries of subsidiary protection and their family members, departing from the more favourable regime applicable to refugees. The Court considered that the immediate application of these provisions was likely to cause serious and irreparable harm.

It therefore suspended them and referred five preliminary questions to the CJEU, asking in particular: (1) whether the Directive 2003/86/EC is valid insofar as it excludes beneficiaries of subsidiary protection from its more favourable family reunification regime; (2) if so, whether the EU Charter of Fundamental Rights precludes national measures subjecting beneficiaries of subsidiary protection to less favourable conditions than refugees; (3) whether the Directive 2011/95/EU is valid insofar as it limits the concept of “family members” to those present in the same Member State; and (4-5) whether the Charter precludes national measures imposing stricter family reunification conditions on beneficiaries of subsidiary protection if their  family members are not present in Belgium, in light of the right to respect for family life and the best interests of the child.

Unofficial translation by the EWLU team