Why delay with visa lift

Ivan Bozhko
14:24, 21 June 2016
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June 10, during the regular meeting of the Council of Europe, with the participation of justice and home affairs ministers of the EU member states, the issue was discussed of visa liberalization with Ukraine, Georgia, Turkey and Kosovo. Contrary to many expectations, the meeting saw no concrete decisions taken on the matter. At the same time, the ministers determined that the consideration of the European Commission’s proposals will be held in the coming weeks based on the assessment of implementation by the aspirants of the visa liberalization requirements. However, as has been announced repeatedly, the Ukrainians shouldn’t expect an introduction of a visa-free regime with the EU before the autumn of 2016, and that’s according to the most optimistic forecasts.

What is the reason for such a slow act on part of European officials? Today, it rests on political motives - the negotiations with Turkey on curbing migration flows. Visa liberalization with Turkey is one of the terms of the agreement, which would help Europe solve the problem with the immigrants who have flooded the EU.

At the same time, to enjoy a visa waiver, Turkey needs to implement in its legislation the European standards in the field of human rights and freedoms guarantees, which is a challenge as such. As of today, Turkey has not fulfilled more than a half of the requirements set by the European Union. And, given the recent statement made by the Turkish prime minister on an uncompromising position on the anti-terrorism laws, we can see that the situation is completely deplorable.

That is, a “package consideration” of visa liberalization for all four candidate states is now impossible, while taking an appropriate decision regarding each applicant will most likely infuriate Turkey and lead to the failure of solutions on refugees.

Although Ukraine has formally fulfilled all the requirements of the European Union, there are questions regarding practical implementation of reforms adopted in efforts to facilitate visa liberalization

Another reason for the delay in addressing the issue of lifting the visa regime between the EU and Ukraine is the EU’s will to first develop a legal mechanism for the suspension of visa waivers, which would be enforced in case migration  risks from the countries concerned increase significantly. At the same time, we should not assume that the entire responsibility for the possible postponement of the decision on Ukraine rests solely on external factors. Although Ukraine has formally fulfilled all the requirements of the European Union, there are questions regarding practical implementation of reforms adopted in efforts to facilitate visa liberalization.

Ensuring practical realization of the updated legislation is an integral part of the Ukraine-EU visa dialogue (the second phase of the Visa Liberalization Action Plan for Ukraine). Despite the fact that in its sixth report on the progress of the VLAP implementation by Ukraine, the European Commission noted that Kyiv had fulfilled all the criteria set out in the framework of the four parts of the second phase, the Commission continues to actively monitor Ukraine's continuous implementation of all criteria through the specially developed monitoring mechanisms.

Among problem issues that can draw the attention of the Commission, include understaffing of the National Agency for the Prevention of Corruption (just four of the five members of the Agency have been elected), as well as the fact that the launch of the electronic tax declaration system, which will primarily affect high-ranking officials, is scheduled for August 15, 2016, according to the National Agency’s decision. That is, the corresponding provision of the anti-corruption legislation is not being enforced at the moment.

The citizens should expect the introduction of a visa-free regime no sooner than the EU develops a mechanism for its suspension

On the other hand, the above-mentioned internal reasons can hardly be a major obstacle on Ukraine’s path to receive a visa-free regime with the European Union. For example, understaffing of the National Agency for Preventing Corruption does not hinder its operations (in accordance with the provisions of Article 4 of the Law of Ukraine On Prevention of Corruption, this body shall be considered competent with the appointment of half of the total the number of its members). A small delay in the introduction of electronic tax declaration system is rather tied with the need to implement technical solutions - develop software, connect the system to the official state registries to enable rapid verification of the information referred to in the declarations.

Here, of course, it is possible to note some attempts by the courts to make changes in the “visa-free package” of laws. For example, the Kharkiv economic court has challenged the new law on e-declarations in the Constitutional Court. Another appeal to the Constitutional Court of Ukraine was filed by a group of 48 MPs regarding constitutionality of the provisions of the Law On Prevention of Corruption and Article 366-1 of the Criminal Code, stipulating criminal liability for reporting false tax information. Such actions bear certain risks, but one can certainly not say that they may affect any decision on visa liberalization.

Although it’s difficult to make any predictions in this situation, given the multifactorial nature of this issue, we can say with confidence that the visa lifting for our citizens should be expected no sooner than the EU develops a mechanism for its suspension. To date, the decision on visa liberalization with the EU depends entirely on the political will of Brussels.

Ivan Bozhko is a lawyer at Ilyashev & Partners law firm

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