Agreement on the facilitation of the issuance of visas between the European Community and Ukraine entered into force on January 1st, 2008. On November 29th European Union completed the Agreement ratification procedure during the meeting of EU Council of Ministers as well as the ratification of the Agreement on Readmission. The decision of the Council was based on positive conclusions made by the Committee of Permanent Representatives of the EU Member States (COREPER) which were approved on November 27th.
Agreement on the facilitation of the issuance of visas between the European Community and Ukraine (hereinafter – the Agreement) entered into force on January 1st, 2008. On November 29th European Union completed the Agreement ratification procedure during the meeting of EU Council of Ministers as well as the ratification of the Agreement on Readmission. The decision of the Council was based on positive conclusions made by the Committee of Permanent Representatives of the EU Member States (COREPER) which were approved on November 27th. The Agreements were ratified earlier by European Parliament on November 13th.
Verkhovna Rada of Ukraine ratified both Agreements (on Visa Regime Facilitation and on Readmission) only on January 16th, but the Parties agreed to start prior Agreement operation, simultaneously with similar agreements signed with Western Balkan countries and Moldova in the second half of 2007.
It should be mentioned that before the Agreement entered into force there were fierce debates concerning the conditions and terms of expanding on the territory of new EU Member States – Romania and Bulgaria – visa free regime introduced unilaterally by Ukraine for the citizens of EU Member States on May 1st, 2005. By emphasizing the principle of solidarity and demand for equal treatment European Union stated that the Agreement would enter into force only after Ukraine introduced visa free regime for Romania and Bulgaria. Official commentary given by Ministry on Foreign Affairs of Ukraine on September 20th stated that “Ukraine does not divide EU into old and new Member States and that is why it agreed to review the issue of visa free regime for Romania and Bulgaria”. However delay in problem solution caused ultimatum demands on behalf of European Union and even threats to postpone the Agreement implementation. In return, on November 14th Minister of Foreign Affairs Arseniy Yatsenyuk stated that Ukraine did not appreciate the ultimatum attitude concerning implementation and ratification of the Agreement on Visa Facilitation Regime in connection with Romania and Bulgaria. Nevertheless the compromise was finally found – Ukraine lifted visa obligations for citizens of Romania and Bulgaria on January 1st, 2008 and on the same day the Agreement entered into force regardless the fact that at the time it was not been ratified by Verkhovna Rada of Ukraine.
We consider six months that have passed since the Agreement entered into force to be essential period for making preliminary conclusions concerning Agreement implementation. At the same time it should be mentioned that EU representatives believe that public assessment of Agreement implementation is premature as practical implementation needs changes and modification of numerous instructions and regulations caused by national legislature of EU Member States and the period between formal implementation of the Agreement and its full-fledged quality implementation needs more time (this exact time is not set).
Nevertheless, as of July 2008 the Agreement has been a valid regulatory and legal document for half a year, Ukrainian party has all grounds for urgent demand of diligent Agreement’s provision adherence taking into account major social significance of the Agreement.
Lack of political will on behalf of EU Member States for public monitoring of quality Agreement implementation causes the fact that official statistics of consular establishments of EU Member States on Agreement’s influence on the situation with visa issuance for Ukrainian citizens is currently unavailable.
Particular concerns raised the fact that according to Ukrainian State Border Service data published in July, over the last 4 months of 2008 the number of trips made by the citizens of Ukraine to EU Member States decreased by 2,6 times comparing to the relevant period of the previous year. Such statistics is unprecedented for Ukraine as in the past such reduction never took place, even during 2000-2004 when Central European countries abolished visa free regime and introduced national visas for Ukrainian citizens in terms of preparation to EU accession.
Over the last month Ukrainian mass media published a number of articles that include numerous facts concerning violation of Agreement regulations , violation of the rights of Ukrainian citizens during their trips to EU Member States , and facts testifying the existence of powerful shadow market of European visas .
As none of the competent agencies refuted either the data provided by State Border Service and MFA of Ukraine or the facts mentioned in the given publications, there are grounds to make relevant conclusions. The main conclusion is that the Agreement on the facilitation of the issuance of visas currently does not fulfill its function – to facilitate the process of receiving visas for those traveling to “old” Schengen Member States and to soften negative outcomes for visitors of the “new” Schengen Member States.
According to the data stated by Deputy Minister for Foreign Affairs Mr. Oleksandr Kupchyshyn as of May 1st about 150 cases of Agreement violation were documented. As was mentioned by Deputy Minister of Foreign Affairs Mr. Oleksandr Kupchyshyn, “mostly they relate to unjustified visa rejections, delay with visa issuance or visa application processing”. He also pointed out several cases of detention of Ukrainian citizens possessing diplomatic passports. They were detained because of visa absence although visa free entry for bearers of diplomatic passports is stated in the Agreement.
According to EU official position the Agreement is being implemented properly. As Mr. Bernard Bogensperger, Attaché of EC Delegation to Ukraine stated, the Agreement functions properly. This statement he testified by the fact that the level of Schengen visa rejections currently equals to 6 % i.e. 94% of applicants receive visas and it demonstrates efficiency of the Agreement. The statements concerning proper Agreement implementation are supported by other EU official representatives. For example, on July 8th, 2008 at the time of French EU Presidency Ambassador Extraordinary and Plenipotentiary of France to Ukraine Mr.Jean-Paul Veziant expressed his satisfaction with the level of Agreement implementation by declaring that the Embassy of France issues sufficient number of multi entry and long term visas; numerous publications in Ukrainian media concerning unsatisfactory level of visa issuance for Ukrainian citizens he perceived as a “planned informational campaign” aimed at discrediting EU and the Agreement.
At the same time the Embassy of Germany to Ukraine stated in the interview for “Expert” magazine that the visa rejection percentage makes up 8% (in the past it equaled to 20%) and the percentage of free visas is close to the half of the total number of issued visas (in previous years this indicator equaled to 12%).
With all the respect towards the position of official EU representatives we should however mention that such argumentation is not sufficient. Firstly, the Agreement content deals with such parameters as the list of documents necessary for argumentation of visit purpose, limitation of maximum visa fee and visa application processing period as well as setting the list of preferential categories of citizens having facilitated access to multi entry, long term and free visas. The visa rejection percentage indicator does not reflect the Agreement competence directly, it relates to its efficiency only to a certain extent. Concrete data concerning the dynamics in the number of issued visas was never stated in the full complex of declarations and agreements stating the position of official EU institutions. The same relates to the changes in the parameters regulated by the Agreement, namely:
• changes in the number of issued multi entry and long term visas comparing to the previous year;
• number of applicants – citizens (in percentage) falling under preferential categories defined by the Agreement who are entitled to receive multi entry and long term visas;
• adherence to the obligation of maximum visa fee – 35 Euro (70 Euro – in the case of urgent procession);
• adherence to the maximum term of 10 days for visa application processing;
• adherence to the precise list of documents for argumentation of the visit purpose;
Such information could provide the possibility to give competent answers concerning Agreement functioning, the progress made and the components that cause concerns and it could eliminate justified suspicions and doubts among Ukrainian experts and journalists.
While performing this survey and experiencing the lack of official information on May 4th, 2008 CPCPS officially addressed the Embassy of Slovenia to Ukraine (the country presiding in EU at that time) asking to assess the Agreement implementation primarily in terms of statistics of long term, multi entry and free visa issuance. We were particularly interested in the percentage of applicants falling under “preferential” categories listed in Articles 4, 5, 6 of the Agreement as well as in the number of applicants receiving free visas and changes in the number of issued long term and multi entry visas, etc.
On June 30th, 2008 we received a response signed by Ambassador Extraordinary and Plenipotentiary of Slovenia to Ukraine Mr. Primoz Seligo which stated that “EU Member States discussed the letter during their working meetings and came to the conclusion that Member States are not competent to provide any response to this letter”. We were offered to address the Joint Expert Committee on Agreement Monitoring which was established in spring in accordance with the Agreement (this Institution will be discussed below) as this body is competent of answering similar requests.
We are not authorized to comment on the official reply of the country presiding in EU. We would just like to mention that Joint Expert Committee held only one meeting and it does not have permanent apparatus. That is why the perspectives of correspondence with this competent body are not certain. Moreover, according to our information Member States are not obliged to provide the Committee with full statistics on the issues that are of interest for Ukrainian society and experts.
Nevertheless, we state the deficiency of information on behalf of EU that could help to agree with or disprove assessments existing in information space.
As to concrete data, we may operate only with those provided by Ukrainian party (MFA, State Border Service) and those, received from our partners through non official sources. Part of the data relating to activities of Schengen Consulates in Transcarpathia presented in the chapter “Expansion of the Schengen zone – first consequences for Ukraine” was kindly provided by Svitlana Mitryayeva.
The case of visa issuance to Republic of Poland is particularly sensitive.
According to the statistics, about 35-40% of all trips made by Ukrainian citizens to EU Member States are visits to Poland. Poland continues to issue the biggest number of visas among all EU Member States and it has the biggest network of consular establishments – 5 Consulates in Kyiv, Lviv, Odessa, Lutsk and Kharkiv. Currently the possibility of establishing the 6th Consulate in Ivano-Frankivsk is being discussed. Operation capacities of General Consulate in Lviv were significantly enhanced after the opening of new Consulate building. Nevertheless after Schengen accession the situation with visa issuance for Ukrainian citizens became noticeably more complicated. This is attested by visa issuance and border crossing statistics.
According to our sources in the Republic of Poland during the first four months of 2008 all five Polish Consulates issued about 92 thousand visas while during the same period of the previous year about 221 thousand visas were issued. Thus a considerable decrease by 2,4 times is observed in the number of visas issued by Polish agencies. Polish representatives explain such situation by decrease in the general number of applicants as many citizens traditionally traveling to Poland are able to visit Poland with visas issued by other Schengen Member States. However, we consider such explanation to be insufficient as in conjunction with decrease in the number of issued visas a rapid decrease in the number of visits made by Ukrainian citizens to EU in general and to Poland in particular is noticed and recorded by custom services on both sides of the border.
Stating the decrease in the number of issued visas we should also take into account the changes in the quantitative proportions of single and multi entry visas. There are no relevant official data, however, comparative monitoring of the work of Polish General Consulate in Kyiv shows that over the previous year overall majority of the issued visas were multi entry and long term while currently the situation is the opposite – mostly single entry visas are being issued.
Such negative tendency is entirely corroborated by border data. According to Polish border service during the first half of 2008 the passenger flow through the border of Ukraine decreased by 18,9% and the movement of private and passenger traffic decreased by 20%. Only the number of truck transportation slightly increased – by 8%. Such data should be completed with the considerable change of proportions of border crossings in terms of the citizenship. Relevantly low indicator of decrease in the number of border crossings (18,9%) can be explained by the fact that the flow of citizens of Poland and other EU Member States crossing land Ukrainian-Polish border is rapidly increasing, while the number of Ukrainian citizens crossing the border is rapidly falling down by 2 and more times.
Introduction of local border traffic regime was supposed to become the instrument aimed at softening the outcomes of Schengen zone expansion. Local border traffic is a special regime for border area residents that gives them the possibility to cross the border with the special multi entry document permitting the stay on the border territories of neighboring countries over the limited period of time. However, only Hungary out of three neighboring countries introduced this regime on time concurrently with Schengen accession while the negotiations with Slovak Republic and Poland were prolonged.
Agreement on Local Border Traffic between Ukraine and Slovak Republic is expected to enter into force in September 2008 and the situation with Poland remains undefined as European Commission made serious comments on the Agreement signed in March 2008. The most important remark is the demand for the parties to limit the Agreement validity only on the border area of 30 km, while in case of Slovak Republic and Hungary the exclusive border area of 50 km is applied and such norm did not provoke any remarks on behalf of EU.
Nevertheless, as of summer 2008 the instrument of local border traffic has not started its proper functioning. Accordingly, taking into account the facts mentioned above, negative outcomes of Schengen zone expansion were experienced by Ukrainian citizens to the maximum extent.
Apart from social and humanitarian outcomes of freedom of movement restriction, Schengen expansion has economic impact as well due to full devolution of practically all types of traditional cross border business management to the competence of citizens of EU Member States. Over the previous years even after introduction of national visas by neighboring countries the majority of border trade was run by Ukrainians. Regardless outdated and half legal type of such “employment” it benefited to some extent to the leveling of social and economic situation on the common border. Currently practically all border trade, at least on the borders with Poland and Slovak Republic, is taken over by neighbors and it deepened crises on the local employment market and increases the distance between life standards for citizens of Ukraine and EU Member States in border areas.
The solution for such situation may be the full fledged introduction of local border traffic on the Ukrainian-Schengen border which is expected in the second half of 2008.
On June 3rd, 2008 the situation with the implementation of the Agreement of the Facilitation of Visa Issuance was the subject for discussion during the meeting of the Committee of Vekhovna Rada of Ukraine on European integration. Summarizing the meeting the Committee Chairman Mr. Borys Tarasyuk stated that “Several EU Member States appeared to be not ready to implement the Agreement provisions…citizens of Ukraine do not enjoy the benefits while crossing the border. Ukrainians face unjustified visa rejections as they did before the Agreement was signed. The Agreement provisions concerning long terms visa issuance are not applied and some consular establishments continue to charge visa fees beyond the terms of the Agreements”.
Based on the conclusions of the meeting the Committee of Vekhovna Rada of Ukraine on European integration plans to organize Committee hearing that will involve state authority and diplomatic missions’ representatives in order to analyze the implementation of the provisions of the Agreement on visa regime facilitation between Ukraine and EU.
Joint Committee is currently the single competent body authorized to review any dispute issues concerning overall visa practice and Agreement implementation in particular. This Committee was created in pursuance with the Article 12 of the Agreement. The work of the Committee is aimed at: а) Agreement implementation monitoring; b) developing recommendations concerning changes or amendments to the Agreement; с) regulating disputable issues in terms of interpreting or applying Agreement provisions.
On April 9th, 2008 the Committee held its first meeting. Ukrainian party of the Joint Committee on Readmission issues was headed by Deputy Minister for Interior of Ukraine Mr. Savchenko O.I.; Joint Committee on Visa issues was headed by the Director of the Department of Consular Service Mr. Pogoreltsev S.O. European delegation was headed by the Director of Visa Policy Department of European Commission General Directorate of Justice, Freedom and Security Mr. Johannes de Kester. Representatives of executive state authorities also participated in the work of Ukrainian delegation. European party was also represented by EC experts, representatives of diplomatic and consular establishments of EU Member States. The exact working rules and procedures of the Committee were approved by both parties during the meeting.
According to official declaration “The meeting of the Joint Committee was devoted to the discussion of the problems of Agreement provisions implementation as well as to sharing the experience of the countries in the given context. As a result of the meeting the parties agreed to maintain open and constructive dialogue on a regular basis in order to timely solve the issues arising in terms of the realization of the Agreements mentioned above”.
The next meeting of the Committee aimed at discussing important content issues including the problems with Agreement implementation mentioned above, was postponed till September although initially it was planned to be held in July.
In our opinion, the main reasons for continuous existence of significant problems in terms of visa issuance for Ukrainian citizens by EU member states are the following:
1. Deficiency of political will to fully implement the Agreement on behalf of certain EU Member States
2. Existence of such Agreement provisions that can be ambiguously interpreted. EU generally interprets them not to the benefit of the applicants from Ukraine
3. Deficiency of joint EU agencies’ competences (primarily of European Commission) in order to maintain full fledged Agreement implementation by EU Member States. Consulates of EU Member States apply rules and instructions of national ministries instead of Agreement provisions or European Commission’s recommendations or, moreover, decisions of European Parliament. In case of disagreements between the Agreement and internal legislature or instructions the consulates applied the latter.
Obviously, in the nearest future the parties will follow their own, sometimes mutually excludable assessments of Agreement implementation. The work of Joint Committee will be defined by a great number of practical materials on cases of Agreement violation presented by Ukrainian party. At the same time regardless formal competences of the Committee in terms of the Agreement, it is not authorized to approve any decisions mandatory for Consulates of Member States. Thus the work of the Committee will have only moderate impact on the situation.
