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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 19 March 2026, the Administrative Court of First Instance of Thessaloniki published a decision referring a preliminary question to the CJEU regarding the interpretation of Article 46 of Directive 2013/32 (the Asylum Procedures Directive – APD). The case concerned an application for annulment lodged by a Guinean national against a decision of the Appeals Committee which had rejected his asylum appeal as inadmissible due to late submission.

The applicant applied for international protection in 2018, but his application was rejected at first instance. He promptly requested free legal aid and a lawyer was appointed, however, his appeal was lodged after the statutory deadline, and the Appeals Committee dismissed the appeal as inadmissible. Before the Administrative Court, the applicant argued that the late submission was not attributable to him but to failures in the provision of legal aid and claimed he was deprived of an effective remedy, in breach of Article 47 of the EU Charter of Fundamental Rights and Article 13 of the European Convention on Human Rights.

The Court reviewed the EU and national legal framework and noted that while national law provides strict deadlines for appeals, these must not render the exercise of the right to an effective remedy impossible or excessively difficult. It also acknowledged the established national case law that, in principle, applicants bear the consequences of their lawyer’s errors, unless force majeure is established. According to domestic case law, force majeure does not include negligence on behalf of an appointed lawyer that results in missed deadlines. However, the Court identified a legal uncertainty as to whether this approach is compatible with EU law in situations where the legal representative is appointed by the State and the applicant has acted diligently.

Considering the importance of the right to an effective remedy and the potential consequences for asylum seekers, including the risk of refoulement, the Court decided to refer the following preliminary question to the Court of Justice of the European Union:

“Is it compatible with Article 46 of Directive 2013/32/EU and Article 47 of the Charter of Fundamental Rights of the European Union to reject, pursuant to Articles 92(1)(a) and 95(8) of Law 4636/2019, an administrative appeal against a first-instance decision rejecting an application for international protection, due to late submission? Such rejection occurs in a situation where the requirements laid down in Article 71 of Law 4636/2019 (Articles 19 to 23 of the Directive) and in the implementing Ministerial Decision No 3449/2021 have not been complied with, namely the obligation to inform the appellant of the lawyer appointed to their case, to ensure communication between the appellant and that lawyer, and where the latter has not handled the case with the required diligence under Article 5 of that Ministerial Decision.  More specifically, it concerns  a case where, although the appellant requested within the statutory time limit the appointment of a lawyer by the Asylum Service to assist them and demonstrated due diligence in pursuing their case and in taking the necessary steps for the proper lodging of the appeal, the lawyer appointed by the Service failed to communicate with the applicant and to lodge the appeal in due time, without any proven case of force majeure affecting the lawyer?”

Unofficial translation by the EWLU team
EWLU team would like to thank Equal Legal Aid for bringing this case to our attention