This article is part of our special report EU-Ukraine Relations.
A visa action plan adopted at the recent EU-Ukraine summit is a success for Kyiv, but the hardest task will be meeting the European Union's expectations on democracy, tackling corruption and the rule of law, writes Marta Jaroszewicz from Polish think-tank the Centre for Eastern Studies (OSW) in a February commentary.
This commentary was sent exclusively to EURACTIV by the Centre for Eastern Studies (OSW).
''The Action Plan on visas adopted during the recent EU-Ukraine summit is a success for Ukraine. It is the first time that Kyiv has succeeded in obtaining a definition of the conditions and criteria whose fulfilment will enable Ukraine to apply for the lifting of EU visas for its citizens.
Since Viktor Yanukovych became president, Ukraine has adopted or prepared key legal acts that brought it nearer to European standards in the area of border and migration management. One of Kyiv's strengths is also its relatively well reformed border service. Moreover, illegal transit migration via Ukraine is decreasing, and fewer Ukrainians are trying to enter or stay in the EU illegally. Also, Kyiv has efficiently implemented the EU-Ukraine readmission agreement.
The hardest task for Ukraine will be to meet the EU's expectations concerning values, the condition of Ukrainian democracy, and the rule of law. Corruption remains the main barrier to Ukraine's development and modernisation; the courts are weak and the judicial system inefficient. The main undertaking of the new migration service that is being formed at the moment will be to create a civil system of registration, monitoring and regulating the stays of foreign nationals. Ukraine is lagging behind when it comes to the introduction of biometric documents.
For these reasons, the complete abolition of visas seems to be a long-term perspective, especially considering that many EU countries, which themselves are faced with the problem of migrants' integration, are rather sceptical about the further liberalisation of movement of people with their eastern neighbours. In the immediate future, if Ukraine meets some of the requirements set by the EU, it will be able to seek the extension of the visa facilitations that have been in operation since 2008.
An assessment of the document
Ukraine has received a relatively standard document which sets quite strict requirements in five key spheres: document security including biometrics, illegal migration including readmission, public order and security, external relations and fundamental rights.
What is new is the division of these requirements into two groups. The document singles out the requirements related to the introduction of relevant legal changes and the preparation of reforms on one hand, and the requirements related to the actual implementation of these reforms on the other.
Ukraine's ability to fulfil the conditions of the second category will depend on the decision of the European Commission and the Council. This provision of the Action Plan reduces Ukraine's chances of getting a visa-free regime soon, since it will have to pass through a long-term decision-making process in the EU institutions, as well as receive the initial approval of EU institutions.
Another novel provision was the European Commission's assessment of Ukraine's progress in tandem with the assessment of how visa liberalisation may affect the EU’s security in the context of the risk of illegal migration from Ukraine. This condition reflects the scepticism of many EU states about lifting the visa regime for Ukraine.
Ukraine's strong points
Ukraine's strong points in its negotiations with the EU are above all its political will (Kyiv abolished visas for EU citizens back in 2005), its efficiency in legislative work, its relatively efficient border service, and decreasing illegal migration into the EU. Moreover, Kyiv succeeded in meeting the obligations of the readmission agreement with the EU, which came into full force on 1 January 2010.
Within the last ten months, since President Yanukovych took power, Ukraine prepared key legal acts that have brought it closer to European standards in the area of border and migration management. The strategy of integrated border management has been prepared and passed through the parliament at express pace. This is the main strategic document that prepares Ukraine to leave behind the post-Soviet system of border control and join the four-tier model of border management operational in the EU.
Relevant legal amendments have also been prepared to break the legislative deadlock around the migration service. The presidential decree meant to reform central government institutions in Ukraine has established the State Migration Service (under the Ministry of the Interior), which is to carry out work in the fields of citizenship policy, immigration, registration and asylum.
The new government has also introduced the legal amendments and institutional changes related to personal data protection that were necessary to launch the process of issuing biometric documents.
Ukraine can also boast a relatively well-reformed and efficiently-managed State Border Guard Service. This service has succeeded in steering clear of political turbulence and frequent organisational changes, which is the fate that befell the migration service. In the last five years, the border guard, supported by EU assistance programmes, has been reforming quite efficiently.
Ukrainian aspirations to a visa-free regime with the EU are supported by the improving migration situation. Within the last few years illegal transit migration via Ukraine has decreased, and the number of people apprehended for illegal border crossing has been steadily decreasing. In 2008, the border service apprehended 4,800 people attempting to cross the border illegally; in 2009 this number fell to 3,600, and in the first eight months of 2010 it was 1,800.
Moreover, fewer Ukrainians are attempting to illegally enter or stay in the EU. This is mainly due to increasing chances of obtaining legal status in EU countries (migrant regularisation campaigns have been carried out in Southern European states, and Poland and the Czech Republic have simplified their regulations concerning the employment of foreigners).
The falling rate of visa refusals in the EU states' consulates illustrates the declining visa risk posed by Ukrainian citizens. In 2009, the visa refusal rate was about 5% of all visa applications (the EU considers 3% to be a safe threshold for visa refusals).
After a year of the full operation of the readmission agreement between Ukraine and the EU, it can be stated that Kyiv has been executing this agreement pretty smoothly, as was actually noted in the Action Plan. Ukraine may owe this efficiency to the fact that relatively few people have been readmitted from the EU states; nevertheless Kyiv has admitted the vast majority of them.
It should be noted that the readmission agreement Ukraine signed was highly favourable to the EU. Among other things, Ukraine has agreed to take back those immigrants who illegally remained on EU territory, even if they had left Ukraine legally.
The hardest task for Ukraine will be to meet the EU's expectations concerning values, the condition of Ukrainian democracy and the rule of law. Some dangerous phenomena, such as the restriction of political pluralism, the concentration of power in the hands of the president, and the use of law enforcement agencies and courts in political struggles have not gone unnoticed.
Even though the criteria related to the rule of law and judicial independence have not been directly referred to in the Action Plan, Kyiv has to fundamentally reconstruct its legal system if it wants to cooperate with EU member states effectively on criminal matters.
This reconstruction would include improving the qualifications of judges, changing the legal system, which is now based mostly on regulations (and not laws passed by the parliament), improving the inefficient judicial system and reforming the prosecutor's office.
Even though Ukrainian law states that the maximum period for detention without charge is 72 hours, illegal immigrants apprehended in Ukraine are often kept for much longer without the permission of a court.
Most Ukrainian politicians admit that corruption remains a major barrier to the development and modernisation of Ukraine. During the Anti-Corruption Committee session in October 2010, President Viktor Yanukovych declared that corruption is a threat to national security. Corruption is widespread; both the administrative corruption faced by citizens every day, and the so-called 'grand' corruption where politics meets business.
In 2010, in the Corruption Perception Index by Transparency International, Ukraine ranked 134th among the 179 countries surveyed. So far, there does not seem to be enough political will to prove the government's intention to battle this phenomenon. Kyiv is failing to meet its obligations to its membership in the Group of States Against Corruption (GRECO). For several years now, Ukraine has been unable to adopt anti-corruption legislation.
The main problem of the new migration service will be the creation of a civil system for registering foreigners, issuing residence permits, granting refugee status, monitoring the migration situation and coordinating migration policy in a situation when its supervisory authority (the Ministry of the Interior) remains an unreformed, police-type bureaucratic institution, which is focused on combating illegal migration rather than legalising migrants.
Ukraine will now have to face problems such as dealing with delays in granting refugee status, integration of migrants, the expulsion of undesired persons, and granting temporary residence to migrants who cannot or should not be returned.
It also seems that the Ukrainian government has put too much effort into preparing a state migration strategy that should have the status of a legal act. Ukraine's migration system does not seem to be firm, and so it will be hard to regulate with one legal act. At the moment it would be better to adopt a political document at the governmental level.
Ukraine is lagging behind countries such as Russia, Belarus and Moldova regarding the introduction of biometric documents. In 2011, the government adopted the plan for introducing biometrics. However, Ukraine is still in the initial phase of the process, whereas the possession of a biometric passport is a necessary condition for the possible visa-free entry of Ukrainian citizens to the EU.
Another problem is the lack of an electronic system with a database on foreign nationals, visas and border crossings which would be accessible to all relevant services and institutions.
Conclusions. Prospects for visa liberalisation
Immediately after the EU-Ukraine summit, President Yanukovych announced that Ukraine would be able to meet the requirements set by the Action Plan as early as the first half of 2011. This seems impossible, considering Ukraine's unpreparedness to meet the Action Plan's exacting requirements.
Moreover, the document assumes that the first assessment of Kyiv's progress will be made right in the middle of 2011.
It should also be borne in mind that many EU member states are rather unfavourably disposed towards the idea of further visa liberalisation, as they find it hard to cope with migrants' integration, and are unwilling to accept more migrants.
Finally, another country seeking a visa-free regime with the EU is Russia, whose advantage over Ukraine is its powerful lobby in some EU states, and has a lower visa refusal rate in its relations with the EU. Russia can also boast an efficient migration service and has introduced biometric passports.
It seems that by the turn of 2012, Ukraine should be ready to meet the first group of requirements set by the Action Plan, which relate to the introduction of relevant legal amendments and preparation of reforms. So if the initial assessment of Ukraine's progress is positive, the government in Kyiv may have a chance to extend the current visa facilitation agreement.
For example, the categories of persons subject to visa facilitation could be extended, whereas the number of documents required for obtaining a visa could be reduced, and visa fees could be lowered.
Special liberalised visa regulations or rules for crossing the border could be applied during the European Football Championships in 2012. Such decisions are likely to be approved by EU member states, as they do not increase migration risks, and meet Ukraine's European aspirations.
The complete abolition of visas within the next few years is not an unrealistic perspective. Ukraine's migration situation is tending to stabilise, whereas its progress on border protection and migration management systems is considerable.
From Kyiv's viewpoint, it is crucial to convince the EU states that Ukraine is earnestly fighting corruption, and that European law enforcement authorities and courts can find trustworthy partners in Ukraine who will operate according to similar standards.''