'Mission impossible?’ A visa liberalization view from within the EU

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June 3, 2011, 11:27 a.m. | Op-ed — by Raul Hernandez i Sagrera

Raul Hernandez i Sagrera

With the action plan on visa liberalization, travelling to the European Union without visas seems closer than ever. However, the set of reforms to be implemented by Ukraine to achieve the visa-free regime is very demanding. The key question is whether it will be enough for Ukraine to implement the reforms to get no more visas. Will the EU really base its decision on the fulfulliment of the reforms? In other words, will the union adopt the technical approach defended by the European Commission? Despite the reluctance of some EU member states, it is indispensable that this approach is fully credible to provide an incentive to Ukraine to move forward in the path towards a regime with no visas. The liberalisation of Schengen visas for Ukrainian citizens constitutes without a doubt one of the top priorities of the cooperation between the EU and Ukraine, alongside with the negotiations on a free trade agreement. Indeed, when Ukraine and the EU approved their first action plan on justice and home affairs in 2001 they foresaw the suppression of the current visa regime with the Schengen area as a long-term goal. After 10 years of uncertainty of when and under what conditions Schengen visas would be lifted for Ukrainian citizens, Brussels presented an action plan on visa liberalisation to the Kyiv authorities on Dec. 22, which was first available to the public on Kyiv Post online. The visa liberalisation process follows in principle a pattern of conditionality whereby Ukraine should fulfill a set of benchmarks before the abolition of the visa regime. Will this action plan be finally the decisive step that paves the way to travelling to the EU without visas for Ukrainian citizens?

A few notes on the context surrounding the Schengen liberalisation process should be taken into acount. First, it entails only the so-called short-term visas, which allow for up 90 days travel in the Schengen area within a six-month period. Actually, short-term visas are the only ones under EU competency. Both the European Parliament and the Council of the European Union must approve abolishing the visa regime. As a result, this lifting does not include long-term visas (issued according to each EU member state provisions), which are compulsory in wider forms of mobility such as student exchanges, work stays, etc. It should then be clearly stated that the abolition of Schengen visas entails only a limited part of a much broader concept of mobility from Ukraine to the EU. Actually, the Schengen visa regime has its roots in the abolition of internal border checks within the Union, with the signature of an agreement in the Luxembourg village of Schengen in 1985, then the geographical center of the EU.

Second, we must recall that, as a first step towards visa liberalisation, a visa facilitation agreement between Brussels and Kyiv entered into force in June 2008. Officials foresaw the easening of the visa application procedure for certain categories of people, among them students, researchers and business people. This regime stipulates waiving the visa taxes in some cases, fixing visa fees at 35 euros (although they can be higher when EU member states outsource the visa issuance to private companies) and eventually including multiple entry visas are also envisaged.

Since the entry into force of the EU visa code in 2010, which is the EU regulation pinning down the Schengen visa issuance procedure, the agreement has to be amended accordingly. The negotiations on the amendment of the visa facilitation agreement are running in parallel with the visa liberalisation process and should not be underestimated. Afterall, only the citizen holders of biometric passports are going to be eligible for the eventual visa-free regime. Citizens with ordinary passports will only benefit from the visa facilitation agreement and not from a visa-free regime. In addition, in light of the EU regulation on small order traffic, Ukraine and its EU neighbouring countries, have signed local border traffic agreements which allow for free travel within a 30-50 kilomerts area on both sides of the border.

Third, we should also bear in mind that the Schengen regime is currently showing signs of weakness at the internal level. Last year, EU citizens of Roma origin residing in France were deported to Romania and Bulgaria, their countries of origin. Moreover, Romania and Bulgaria have not entered the Schengen area due to the reluctnce of several EU member states. Recently, France decided to reintroduce internal border checks with Italy due to the influx of refugees coming from Lybia. Similarly, Denmark introduced unilaterally customs checks in all its borders. All these events should by no means interfere with the visa liberalisation process with Ukraine, but are clear signals of the weakness of the Schengen regime within the union.

Finally, the lifting of visas in the Western Balkan countries in 2009-2010 preceded the visa liberalisation process in Ukraine. In the framework of visa liberalisation roadmaps, reforms had to be fulfilled in document security (introduction of biometrics), migration management, public order and security (adoption of Council of Europe Conventions in data protection, human trafficking, among others) and human rights and fundamental freedoms.

The success story of Albania, Bosnia and Herzegovina, the Former Yugoslav Republic of Macedonia, Montenegro and Serbia gave originally hope to the Eastern Partnership countries. The same set of reforms has been included in the visa liberalisation action plans launched so far in Ukraine and Moldova. However, a comparative analysis of the documents shows a series of differences. On the one hand, the action plan is subdivided into two phases: the first on legislation and planning and the second on implementation of the reforms. This two-phased approach inevitably leads to a slow-down in the process. Second, the content of the reforms is much more far-reaching in the action plans. For instance, in the block on migration management, the complete demilitarisation of the Interior Ministry, as well as the full operability of the state migration service are vital.

At this point, the key issue is whether the fulfillment of the reforms set out in the Ukraine visa liberalisation action plan will suffice for the regime to be abolished. In other words, is the process really going to be based on merit and hence be something achievable? This reflexion is really relevant: the Ukrainian authorities will have an incentive to carry out the reforms only if the technical approach, based on the advancement in the implementation of the reforms set out in the action plan, is fully credible.

While the European Commission supports the technical approach, some member states are reluctant to liberalise the visa regime with Ukraine. This position is linked with the fact that deciding who enters the territory of a State lies at the heart of sovereignty, even if the issuance of short-team visas is an EU competency. The reluctance is also caused by misperceptions linked with the alleged migration threat that the visa-free regime would trigger. The authorities of several EU member states believe that the visa-free regime would provoke a massive immigration of Ukrainian citizens into the Union, who would overstay in EU territory. The Western Balkans’ positive experience should dissipate these misperceptions.

To conclude, it is indispensable that the technical approach be credible for the visa liberalisation process to move forward, regardless of the country, be it Ukraine, Russia –where the visa liberalisation dialogue was launched in 2007 -- Moldova (which has adopted a pre-emptive approach in implementing the reforms) or the rest of the Eastern Partnership countries, which should follow the same path. As President Viktor Yanukovych expressed last January: “I have hope that before the Euro 2012 [soccer championships], the visa-free regime from the European Union becomes a reality.” Whether this will happen by that time seems unlikely, given the two phases and the far-reaching reforms in the visa liberalisation action Plan. In any case, the following months will certainly be crucial in the path towards the visa-free regime.

Raül Hernández i Sagrera is visiting research fellow at the International Centre for Policy Studies in Kyiv.
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