Author: Marta Králiková
High hopes and stakes for the visa liberalisation
Ukrainians might be soon travelling to the Schengen zone without visa obligation. The long-awaited decision has been postponed due to internal developments in both the EU and Ukraine. On the one hand, the EU’s decision is now conditioned by the development of the visa suspension mechanism and the political will of the EU member states, concerned about corruption and unregulated migration from its eastern neighbour. On the other hand, the Ukrainian authorities need to keep their commitment to the international community and their own citizens and show real political will in the fight against corruption. The visa-free regime is an achievement of six years of reforms that have made Ukraine a safer neighbour of the EU and mark an important step in EU-Ukraine relations.
Captured by crises
However, the postponement reflects also the intricacies of internal development in Ukraine. Despite the progress in the adoption of reforms, their sustainability and implementation are unceasingly endangered, creating a lethal gap between society and the state. Besides rather technical improvements in the area of border control, migration management and document security, the anti-corruption reforms were one of the major preconditions for visa liberalisation. They represent also one of the most contested and problematic areas of reform.
Anti-corruption reforms: legislative changes vs. ‘deep state’ resistance
The efforts for legislative and institutional changes have been resumed after the Revolution of Dignity. In October 2014, Verkhovna Rada has adopted a number of anti-corruption laws, which is considered to be the most massive and systematic reform of the anti-corruption legislation in Ukraine’s transition. Three crucial anti-corruption institutions established are: (1) The National Agency for the Prevention of Corruption (NAPC), which plays a preventive function by developing and ensuring compliance with national anti-corruption policy, (2) The National Anti-Corruption Bureau of Ukraine (NABU), a law-enforcement agency responsible for combating criminal corruption offences committed by senior officials and (3) The Specialised Anti-Corruption Prosecution Office, which is in charge of oversight of criminal investigation conducted by NABU and for public prosecution in court (infographics with an overview of anti-corruption institutions and their mandates can be found here).
Important changes include also amendments to the Constitution regarding judiciary and the new law on judiciary adopted in June 2016, which brought several improvements in de-politicising the court system and improving transparency and fairness in the process of selection of judges. Another potential game-changer is the electronic procurement system ProZorro, developed by young IT specialists and appraised at World Procurement Award. It has already allowed saving 1.5 billion UAH on public procurement since the first 14 months of its operation and should save 50 bl UAH yearly.
The principle of conditionality in the visa liberalisation process has been a crucial tool of the EU to motivate Ukrainian authorities to fulfil their commitments. Amplified by the public demand, civil society created pressure on the parliament to adopt necessary laws. As argued by experts from Europe without Barriers, the visa liberalization process has created an ideal policy environment, where the public visibility of the reward produced significant pressure on Ukraine’s decision-makers to implement a series of difficult reforms.
According to Transparency International, these reforms have created sufficient legal prerequisites for developing an effective state mechanism to prevent and combat corruption. However, in the same breath, the experts argue that the real measure of political will is whether those laws are enforced fairly, equitably, and consistently. This is obviously much more problematic. The effective implementation of the new legislation inevitably implies a limitation of the political power and demands political elites to yield their rule to the rule of law, which collides with high resistance from some political groups that wish to preserve the status quo. Many experts are therefore rather sceptical about the real impact of the ‘façade’ reforms, comparing it to ‘Brownian motion’ when many steps are taken, but with limited progress. According to an opinion poll, only 6% of citizens believe that measures to fight corruption will be successful.
The intricacy of the domestic situation has been exposed with the belated launch of the electronic declaration system of assets of public officials, designed to curb high-level corruption. Since its inception, there have been several attempts to paralyse the system. Ukraine should have launched the system on 15th August to fulfil the last condition of the visa liberalisation Action Plan and the precondition for the next IMF tranche of $3 billion; however, it failed to do so despite a number of commitments to its international partners.
The asset declaration system is considered to be a crucial component in the overall reform process. The software, developed in cooperation with the UNDPobliges all public officials to submit digital asset declaration, while the non-performance or misleading information can lead to criminal liability. However, on 15th August, the system was launched only in a trial version without legal force.
This was met with harsh criticism from the civil society and international partners including the EU, UNDP, and IMF. On this issue, the head of the EU Delegation in Ukraine Tombinski described Ukraine as a big construction site characterised by resistance of the so-called deep state structures, which keep Ukrainian citizens as hostages. He also highlighted the need for the Ukrainian authorities to invest much more in gaining credibility and to deliver its promises, as this has consequences for further political engagement. Ukraine is currently not in an easy position, dependent on the economic and political assistance of the EU and other foreign partners. However, not all of them are patient to back Ukraine and keep sanctions towards Russia if they do not see Ukraine delivering.
Concerted pressure from the external actors and the Ukrainian civil society has led to the full launch of the e-declaration system on September 1st. However, a few days later the media reported that the system is not functional again and there are already legislative proposals in the Parliament to curtail the system.
The authenticity of the reform is thus doubtful; nevertheless, the resistance of the ‘deep-state’ structures already indicates the strong potential of systemic changes to disrupt corrupted working methods. The expected consequences might be ‘an atomic bomb’ for the old elite – before the end of October, 50 000 high-profile politicians, including the President of Ukraine, the Prime Minister, members of Parliament, judges, prosecutors and higher public officials, should declare their assets electronically, opening them to public oversight. From 1st January 2017, the obligation should apply to all public officials. However, despite evident Western pressure and the high stakes for the whole country, the saga of e-declarations has not finished yet. It shows exemplarily the lethal gap between Ukrainian society and politicians and between changing laws and effective implementation bringing tangible results.
Visa-free movement: concerns and hopes
Together with reform in the area of fundamental rights and the fight against corruption, Ukraine also had to change its legislature and standards in managing legal and illegal migration and securing its borders against negative consequences of organised crime and human trafficking. These issues have been on the member states’ radar given both migratory challenges in the EU and the internal situation in Ukraine, torn by the military conflict and unable to control part of its border with Russia. Ukraine has adopted several measures to show it is able to guarantee the safety and security of its own borders and to contain eventual risks stemming from the visa-free regime for the EU.
Ukrainians currently hold third place in the number of Schengen visa issued (after Russia and China). 1,188,357 visas were granted to Ukrainians in 2015, while the refusal rate was only 3,4 %. Some member states fear that easing access to Schengen will result in increased labour migration and unofficial employment. According to an IOM-commissioned study, among 688 000 Ukrainians currently working in foreign countries, 20% is in Poland and almost 15% in the Czech Republic, followed by Italy and Belarus. Labour migration is one of the crucial enablers of development in Ukraine, reflected in the number of remittances sent back home – 2,7 billion USD in 2014.
To a large extent, the question of (il)legality of labour migration depends on the openness of the labour market, for which member states have different strategies. Apart from the EU Blue Card, which has proven insufficient and unattractive so far, some member states have developed their own strategies to fill the gap in the workforce. The Czech Republic, for example, has recently introduced the pilot project of hiring highly qualified workers (from the IT and technical sector) from Ukraine. The project has led to satisfaction of both Czech employers and Ukrainian workers and shows a positive example of channelling the migration potential.
The member states equally fear that visa waiver to Ukraine will cause more asylum applications, especially from the 1,7 million internally displaced people from the occupied territories and Crimea. Given the experience of the visa-free regime with the Balkan countries, which resulted in a significant increase in the number of asylum applications, this marks negatively the prospects of lifting the visa obligation to Ukraine. However, the fears from an influx of refugees to the EU due to the conflict in Eastern Ukraine has proven unsubstantiated so far. In 2015, 22 055 Ukrainians applied for asylum in the EU, which makes only 1,7% of all asylum seekers. From this number, only 415 people were granted asylum, which might deter a dramatic increase in applications.
In any respect, the EU has measures at its disposal to tackle the unwanted consequences of the visa-free regime. The Readmission agreement between the EU and Ukraine establishes the reciprocal obligation to facilitate the return of persons who reside on the respective territory without authorisation. Similarly to the Western Balkans, the EU can lead to post-visa liberalisation monitoring and address eventual violations of the VLAP requirements by an array of mechanisms – from a political warning to the suspension of the visa-free regime. The latter is currently on the agenda, as some member states condition visa waivers by the review of the current mechanism. They prefer easier and faster procedure, which would allow them to suspend visa-free travel for six months in case of non-compliance with the visa liberalisation requirements. The current visa waiver suspension mechanism is considered the last resort and is bound by strict conditions and detailed assessment by the Commission. It allows the temporary reintroduction of the visa requirement for citizens of a third country in case of an emergency caused by abuse of the visa-free regime and sudden increase in the numbers of irregular migrants, unfounded asylum applications or rejected readmission applications. The ‘safety brake’ to avoid misuse of the visa-free regime is therefore in member states’ hands and could help to increase their confidence in the visa governance.
Mutual trust as a cornerstone of further cooperation
The reforms Ukraine adopted during the visa liberalisation process have brought advantages to both sides – not only did they trigger improvement of the governance in the country itself, but they have also made Ukraine a safer neighbour for the EU. The gains from the visa-free regime are to follow: through enhanced people-to-people contacts, it can contribute to economic growth, cultural exchange and development of cooperation in education and science. As a very practical gesture, it can also positively affect public opinion and support for the EU as an inclusive and open project.
If Ukraine delivers its commitments on the way to the visa-free regime, it will be up to the EU to sustain its credibility among Ukrainian citizens and to keep the ‘more for more’ principle which promises rewards for reforms and is at the core of EU’s soft power in the neighbourhood. It will create a sense of achievement in a time of difficult transition, but it can also nurture support for further reforms. The ‘change of minds’ so much demand for the success of current reform processes can be facilitated also through easier mobility which contributes to the development of human capital and different way of thinking about the EU and about Ukraine.
For the present moment, it stays a matter of time and political will when the issue will make it on the EU’s agenda. The impact of external factors cannot be fully anticipated, but Ukraine needs to sustain its commitments in any situation. After all, it did not reform for the EU, but for Ukrainian citizens themselves, to restore much-needed trust in the state. The politicisation of the issue will not help any side: approving the visa-free regime is a crucial test for the EU’s credibility in Ukraine and in the wider region; its postponement can serve as a pretext for Ukrainian political groups to halt further reforms, especially the successful implementation of the anti-corruption strategy.
The visa liberalisation dialogue with Ukraine was launched in October 2008, and in 2010 the European Council presented the first action plan (Visa Liberalisation Action Plan, VLAP). The possibility to travel to Schengen zone without visa obligation applies to holders of biometric passports for short-stay travels (max. 90 days in 180 days). Therefore, it should enable mainly travelling for tourism, education or business and boost people-to-people contacts.
The specific methodology of the VLAP set concrete steps to be achieved in four thematic blocks relevant to visa free-regime. The improvements of standards have been related to (1) document security, including biometrics; 2) integrated border management, migration and asylum policy, including implementation of Readmission agreement; 3) reforms and cooperation in the area of public order and security, including anti-corruption reforms; 4) external relations and fundamental rights related to the free movement of people.
The action plan was carried in two phases – initially, it proposed changes of policy and institutional framework and subsequently, it verified effective and sustainable implementation under monitoring from the EU. The European Commission verified the process in six progress reports between 2010 and 2015, after which it declared that all the benchmarks have been achieved and in April 2016 proposed to the European Parliament and the Council to lift the short-stay visa obligation. Besides many rather technical improvements in the area of border control, migration management and document security, the VLAP proved to be especially effective in triggering the progress in fighting corruption, which is a major impediment for improving rule of law, democratic standards and prolific business environment in the country.
 The proclaimed reason was the absence of certification from the State Service of Special Communication and Information Protection of Ukraine, which appealed to deficiencies in data protection, despite previously confirmed functionality.