The free movement of people is a natural right, a real value of modern Europe. It is impossible to imagine the political, economic, and humanitarian consequences for Europe if freedom of movement was limited today.
Amanda Paul | European Policy Centre (Brussels)
However, as with every other freedom, free movement of people has not only positive, but also negative aspects, which are often associated with migration as a “concomitant disease”. Although in the majority of cases real grounds of the associated problems have no direct linkage with non-visa regime, visa liberalisation has became something of an unpopular issue in the majority of EU member states. The increase of illegal migration, organized crime and other negative phenomena are rooted in problems such as bad governance, the inability of governments to effectively manage their countries, economic decline, globalization of criminal links etc. But whatever the arguments that organized criminals easily bypass visa obstacles or that illegal migrants just ignore visa requirements growth of radical right political forces and xenophobic feelings among the population is a matter of fact.
There is a misperception and lack of knowledge about the real interrelation between visa liberalisation and illegal migration. Visa liberalisation would actually have a marginal impact on the phenomena which are of citizens concern. However, the negative perception is increasing not only among the marginal groups. Therefore, it is vitally important for European values and for the unification of Europe, for improvement of political and security cooperation on the continent, economic growth and human links that progress towards a visa free regime and the free movement of people is clearly understood and supported. It is also vital to understand that there is a huge difference between no visa regime for short travel and real free movement of people including movement of labour. If the second would demand real preparation and its effect would be visible and strong in the short term for certain groups inside of the EU, the first one is more of a symbolic gesture with no serious implication for EU labour market.
Therefore, accumulating greater support in the EU for visa liberalisation is a crucial but challenging. The objective of this paper is to define who are the decision makers in this area, where is potential for stronger support, what are the concerns and problems to be solved and what should be done to achieve this goal.
Players and decision-makers
There are multiple players in the EU institutions, in EU Member States and on different levels in the decision making process. Before we examine who influences EU visa policy, and of which nature their interests are, we must clearly identify the division of competence in EU visa policy. It goes without saying that talking about EU visa policy in this article we mean the Schengen area.
In accordance with the Treaty on the functioning of the European Union shared competence between the Union and the Member States applies to cooperation in the area of freedom, security and justice. The Schengen acquis forms part of EU legislation and is divided between the first and third pillars of EU competence with border and visa policy falling under the first pillar and subsequently under the scrutiny of the European Commission and (with some specific conditions) of the Court of Justice of the European Communities and also involving the European Parliament. The European Commission has the exclusive right of initiative on external border control and short-stay visa policy and on free movement within the Schengen zone. This means that the Commission is responsible for proposing policies and actions and that the Council votes them into law together with the European Parliament. The Member States are responsible for implementing them.
Visa policy belongs to the most complicated part of EU internal functioning system, where decisions face lengthy periods of consideration and conciliation and where full and unconditional support of all three EU institutions and all Schengen member states (including those that are not EU members) is required. We can easily see that the Lisbon Treaty, following changes introduced in the Maastricht and more particularly the Amsterdam treaties, strengthened the role of the Commission in migration issues but at the same time increased control and supervision of this area by the member states through the EU Council and the Parliament. The Council adopts Schengen rules unanimously after a proposal from the European Commission. If earlier the European Parliament was only to be consulted, now the Council makes a unanimous decision to legislate Schengen rules under the codecision procedure, which gives the European Parliament equal power to the Council.
The role of the European parliament in this area is relatively new and there have only been a few cases until now when the Parliament acted in visa issues. So, it is still to be ascertained whether the actions and behaviour of the Parliament would not change from the expected patterns to something new on visa issues.
1. EU institutions
Commission. The Commission is in general positive about the introduction of a visa free regime for Ukraine and Eastern European states provided that all the necessary legislative changes are made and implemented and the countries in question cooperate well in the area of justice, liberty and security. Visa liberalisation for EC bureaucrats is a very logical continuation of unavoidable and profitable process of globalization as well as the continuation of European integration to Eastern Europe. It is the only way the Commission can implement its role of a driving force of the European integration – through initiating new stages of integration inside the EU as well as between the EU and its potential new members.
Eastern Europe and in particular Ukraine has been benefiting for the last five years from the positive attitude of the Commission. The EC has always championed visa facilitation and has no problems now with intensive and active progress towards a free visa regime for Ukrainian. This is true for both DGs in the Commission involved in the decision making process – DG External relations and DG Justice, liberty and security, although each of them has its own agenda of relations with Ukraine, in particularly with regard to visa issue. For DG Relex the granting of a free visa regime is something of a long overdue debt to Ukraine, which unilaterally introduced a free visa regime for EU citizens in 2005 and, following the pressure from the Commission in 2007, extended it to new members Romania and Bulgaria. DG Relex can be considered as one of main movers encouraging both partners: Ukraine to make reforms and the member states of the EU to intensify decisions regarding the granting of a free visa regime.
DG JLS has more technical approach looking firstly towards legal aspects and the implementation of the necessary conditions for a visa free regime. However, it is also strong proponent of visa liberalisation provided all the conditions are fulfilled.
The political leadership of the Commission – EC President Barroso, the High Representative, Catherine Ashton and ENP Commissioner, Stefan Fuele should also be included in the list of those who support visa liberalisation and give a clear political guidance to the DGs in this respect. JLS Commissioner Malmstrom deserves particular mentioned. With her appointment the Eastern Partnership countries received a strong supporter and committed friend. However, bearing in mind that not only “liberty”, but also ”security” is a part of her portfolio, one can expect that her positive engagement will not compromise the lack of implementation of the necessary conditions by the countries concerned.
In general, the Commission has been and will continue to be the strongest partner with a clear and positive attitude to visa liberalisation. Their engagement needs to be strengthened by reliable cooperation and clear achievements in practical cooperation. These efforts need to be supported and encouraged. However, it should be understood, that the Commission will only propose to establish a free visa regime for Ukraine provided there is unanimous support by all 27 Member States.
Parliament. The European Parliament has also been a consistent supporter of Ukraine `s EU aspirations. A number of EP declarations have supported granting a visa free regime to Ukraine. However, there can be no guarantee that if asked the EP will easily give a green light for the abolishment of visas for Ukrainians. All previous declarations had no legal power and basically brought no tangible results. This time, when the decision of the EP will inevitably mean very important practical change, which could not be ignored in some constituencies, one can not exclude certain resistance among MEPs from not only radical rightist faction, but also from the centre-right EPP and even in the left PSE. However, at the same time it is very unlikely that the Parliament would go against the very nature of its previous decisions and would stop or significantly slow down the process; being, together with the Commission, a champion of European integration both institutions would be expected to do the utmost in this respect. Furthermore, at the present time the key posts in the Parliament in this respect are occupied by people with quite positive records – President Jerzy Buzek and Head of the Delegation for Relations with Ukraine, Pawel Kowal.
The EP may also be used as a vehicle to increase support within EU member states and in national political forces which may be hesitant to offer their support. For example, German CDU/CSU MEPs may be mobilising support for a visa free regime with Ukraine but compared to their colleagues in national parliament they seem very liberal and can be used to influence the latter to remove possible obstacles blocking positive decisions in the Council.
Council. One has to consider the EU council and its working groups in two ways. First, they of course represent positions of their respective countries, so the Council has to be considered as a sum of national positions. But it is not always a case. The Council has its own independent life and often acts not as the lowest common denominator of 27 positions but as an independent body able to take a step forward. The key role in the process belongs to the EU Permanent representatives as well as to groups of diplomats working in council formats like geographical working groups or in the thematic Visa group. Here one has to take into account the crucial role of the presidencies, which formulate the agenda and leads the discussion. For example, we can easily expect no great progress under the current Belgian Presidency to intensify the dialogue in this area. However, on the flip side, the subsequent Hungarian and Polish presidencies offer a good opportunity to build up stronger support in the Member States the introduction of a free visa regime for Ukraine and other eastern European countries. Moreover, the 2011 Polish presidency represents the best moment for key decisions on this issue. It is possible but rather unlikely that in a short time Ukraine will meet all the conditions for visa free regime. However, even if not adopted the decision to take this step can be seriously advanced during the coming year creating the ground for a positive decision in 2012
EU Council formats will present the discussion place for visa issue and will reflect the position of member states. It will also bring back a feeling of the situation and probable prospects to make the decision to the capitals. Work with the Сouncil will be done only by official channels and will rely on national positions. The main job has to be done in the Member states.
2. EU MS governments
Political leadership. The decision to introduce a free visa regime is always political. If left in the hands of bureaucrats it be discussed for another decade. It has always been with the strong political will of visionary statesmen who were able to take the decision that progress has been made. Therefore, the role of heads of states and governments is a really decisive one. They are the ones able to overcome the endless objections from the justice or finance ministries. Their decision is shaped by the following elements: input by their governmental agencies, parliaments and political parties, general line of the Council, level of their contacts with the countries concerned and their own vision for the future of Europe. In other words if one asks what might be done in the short run to improve support for a visa free regime by the political leadership the answer is to increase internal political demand for this decision and to establish and effectively use direct contacts between Ukraine and EU Member states on the highest level.
One particular channel of influence is the Foreign Policy advisors to the head of governments. In some countries their role is very technical, in the others, like Germany or France, it is very important or even decisive. It can be an extremely effective channel to keep this issue on the agenda of the EU head of states or government. This job should be done by the Ukrainian Ministry of Foreign Affairs and the foreign policy advisers to the President of Ukraine. However, it is only personal contacts, trust and confidence in Ukraine’s leadership as well as their own interests which can really change or improve the position of EU leaders. The contacts have to be permanent and engaging, relations – reliable.
Foreign ministries have always been the most favourable for the introduction of a free visa regime among the governmental departments in all EU member states. Normally they are either positive or in the worst case scenario – neutral on the issue. The main difference between the Ministries of Foreign Affairs is whether they are ready to take a lead in the process of internal decision making process or just follow the line of sectoral ministries, primarily the ministries of interior. The political leadership of foreign ministries is of crucial importance for achieving the result. For the moment the level of pressure on foreign ministries from the side of Ukraine and other Eastern European countries diplomacy is quite high, so there is little need for further action and further pressure could be counterproductive. However, internal pressure – from national businesses and lobbyist groups may still intensify the efforts of foreign ministries in cooperation with line ministries.
Ministries of interior and justice, migration authorities are probably the key to settling the problems of granting a visa free regime for Ukraine and other Eastern European countries. Unlike foreign ministries they have a very different point of view on the visa issue. Diplomats are primarily concerned with maintaining good relations with third countries. Police authorities are responsible for maintaining law and order, keeping any possible threat away. They do not really care how their efforts are perceived by a country of presumed origin of the threats.
The German Federal Police authorities are probably the best example of inhibitory influence on visa dialogue with Ukraine and will most likely be one of the most negative players in the course of adapting the final decision on introduction of a visa free regime. This position is defined by a number of factors – from real criminal activities originating from or linked with Ukraine to a lack of sufficient contacts and cooperation. The last issue may be the most likely explanation of the tough position of German interior ministry. Criminal activities linked with some Balkan countries have been of incomparably higher scale but it did not stop them being granted a visa free regime as almost all of Balkan countries. Russian criminal activities are also of much higher scale but political considerations do not allow expressing very negative position towards visa dialogue with Russia. Ukraine becomes the one case where the German police demonstrate their adherence to principles and rigidity. The latter sometimes has no reasonable explanations as happened with a group of Ukrainian travellers who were stopped by the German border police in May 2008 and harassed despite not violating a single rule.
Improvement of relations with Germany and the establishment of positive cooperation with other EU Member States police authorities is a task that falls to the Ukrainian Ministry of interior. For the moment the Ministry has not been very active in its cooperation with EU partners; it seems that the Ukrainian interior ministry has the strongest potential to be used to improve attitude in the EU Member States towards visa issue with Ukraine.
Border control authorities play a role in the internal decision making process, though this role is not as important as the role of other line ministries and is of a more technical nature. The border control authorities provide factual information about movement of people, are in direct contact with visitors with or without visas and control the inflow of illegal migration from the country in question. Information from the border control authorities influences the attitude of the other ministries on the visa issue in general. Close cooperation with these institutions in EU member states is a task for the Ukrainian State border control committee, especially in terms of the establishment of joint border checking points. The last measure might significantly improve the spirit of trust between Ukraine and the EU in the area of liberty, security and justice.
Ministries of finances can sometimes become the main stumbling block for the introduction of a visa free regime as they have already proved to be a number of times for other actions in the area of visa liberalisation – a good example is the waving of visa fees. The argument from the ministries of finances is very simple and convincing – there is no other source to cover the financial losses from the removal of visa fees, so they have to remain. Only a political decision at the highest level can remove the obstacle of the finance ministries.
3. EU Member State parliaments and political circles have no direct influence on visa dialogue but basically contribute to the atmosphere of the debate. It was the political will in EU member states to bring CEE countries back to the family, which easily enabled removal of visas at the beginning of 90s. This move was based on wide support in national parliaments and political parties, all of whom were inspired by the fall of the Berlin Wall. It is now resistance in national parliaments and political circles to any new opening to Eastern European countries left outside of the EU, which has been the main reason for the EU’s slow movement towards visa liberalisation with Ukraine and others. If 20 years ago the attitude to Eastern Europe was defined by principles of the French revolution, now it can be better described in terms of Huntington’s Clash of civilization or the Fortress Europe concept. To change this perception, to remove real concerns and dispel myths around the results of the establishment of a free visa regime with Ukraine is a real challenge and issue, which must be settled.
Of course positions of national parliaments and political parties in different countries vary greatly. The most negative positions can easily be expected from the German, Austrian, Dutch and Belgian Parliaments. Neither can one expect a particularly positive approach from political circles in Spain, Portugal, and Luxembourg with the French parliament remaining quite ambiguous. One can also not be confident of the positions of the Slovenian and Romanian parliaments. From the point of view of the political spectrum the most likely negative attitude is likely to be demonstrated by the radical right and conservative political forces. Central liberal as well as left political forces are in general positive about visa liberalisation.
There are different ways to improve the attitude of parliaments and political forces towards visa liberalisation. It can be done in the same way as it was for visa liberalisation with the Western Balkan countries or for labour movement with the new member states. Political will, explanations, certain shock and media channels. Today very few voices still express much concern over Polish plumbers or Serbian migrants. It is very easy to predict that the introduction of a free visa regime following may be of crucial relevance or importance to the wider public and may very likely disappear from public monitors 2-3 months latter.
However at the same time public concern can be effectively used by EU member states as a justification for slowing down the process of visa liberalisation. Therefore, it is important in the first place to use public pressure inside EU Member States on national authorities with demands to liberalize and to establish a free visa regime with Ukraine as the only effective way to develop economic, cultural and interhuman links. It can be done through inter-parliamentary cooperation committees, cultural projects, youth exchanges, media projects. The usual lobbing practice could be also helpful.
4. Media, lobbyists and society are basically an additional element to the previous point. However, they can be used directly and more efficiently through different direct projects which can be financed by the state budget and interested parties. Media and civil organization can become a strong influencing group to shape attitudes in national parliaments and governments. It is also necessary to strengthen dialogue and partnership with trade unions and unions of employers of Ukraine and the EU. Both structures have the possibility to be either a troublemaker or promoter for visa liberalisation or vice versa – strengthening of visa regime. Youth organizations can also be very effective in pressuring governments to liberalize the visa regime. It is enough to recall the Austrian-Hungarian picnic of 1989 for just to imagine possible scope of action and public attention to them.
The main problem here seems to be weakness of partner organization in Ukraine (and basically absence of them altogether in some other countries). They have insufficient funds, experience, contacts, and often, interest in this issue. In this respect the sponsored special program to develop the partnership of Ukraine and EU civil organizations can be very effective – the struggle Ukrainian partners face to get visas will inevitably bring the visa issue to the top of the meetings and the ensuing discussion and will help create real, not artificial public pressure on EU governments.
Issues
Lack of trust. EU specialists working in the visa area frequently refer to the issue of trust in partners as the main precondition for introduction of a free visa regime. Lack of trust is one of the main reasons for the slow pace of the visa dialogue. Lack of trust can be explained be two reasons: lack of communication or unreliable Ukrainian counterparts. There are very few contacts on the level of minister of internal affairs of Ukraine and their EU counterparts (if any). There is one annual formal ministerial meeting of justice and internal affairs, where Ukraine is not always represented on the level of minister of interior, there are very few contacts with key partners, especially from the group of 4 most negative EU member states.
Trust is also undermined by certain actions. For example the reintroduction in June 2010 of old type passports (sample of 1994, with paper photo) despite official assurances that Ukraine has settled and is on the way to implement biometric passports. Allegations of corruption, violations of human rights by law enforcement bodies, slow progress in the establishment of European type of migration authorities, etc, makes the prospects of widening support to extending visa free travel to Ukraine rather slim.
This issue could be relatively easily settled provided there is enough political will and administrative capacity to do it. The Ukrainian Minister of the Interior must take a number of actions to establish a partnership with his EU colleagues. Ukrainian authorities must unconditionally implement the well known list of reforms to ensure that the trust in reliability of Ukrainian partners is revived.
Lack of knowledge. As already mentioned, resistance in EU member states to the establishment of a visa free regime is to a big extent determined by a lack of knowledge about the real consequences. There should be a very clear distinction between short term visits which in no way influence the labour market and are mainly of a touristical nature and the free movement of workers. If somebody who visited an EU member state for a short term visit undertook employment it means that shehe violated the law and here we have to speak about the efficiency of law enforcement. In any case those persons who want to travel for illegal employment will find a way whatever the visa regulations – they buy a visa or cross the border without visa. A free visa regime would just help to better control the movement of persons. This has to be clearly explained not only to the wider public, but also to journalists, business and even to some political circles. The emphasis on the positive economic effect from the removal of the visa regime, especially for tourism and services, should be particularly highlighted in the campaign and lobbying efforts. It would also be efficient to capitalize on the expected internal reforms in Ukraine to convince EU decision makers that Ukraine is really changing and is worthy of trust and new steps in the relationship. The ways to do it are well known – seminars, conferences, media campaign, direct contacts etc.
The economic aspect of a free visa regime is very important, especially now. Opponents to a visa free regime openly use the argument that consular services are very expensive and visa fees allow them to keeping it running. It is a false argument and should be rejected if raised. However the main argument in favour of a visa free regime should be a positive one: an increase in the flow of tourists followed by immediate growth of income to the public budget as well as to the real economy is strongly overcoming the narrow interests of foreign ministries to maintain visa fees.
The rule of law, the fight against corruption and organized crime remain important points in discussions on the visa regime with Ukraine. Information on cracking down of one or two international criminal groups by Ukrainian police would have a great impact on EU public opinion and willingness, with which EU Member State authorities will consider granting visa free access to Ukrainian citizens. It would be advisable to prepare such an information campaign before important meetings inside the EU on the visa issue take place. Furthermore, reform of judiciary and actions of the Ukrainian government deserve to receive great support.
Fatigue from European integration/Brussels influence in general and enlargement in particular is frequently invisible in visa dialogue but still present in the room when this issue is discussed by the EU member states. It is therefore important to formulate arguments in favour of a free visa regime in the right way. The emphasis should be on the very value of freedom of movement by itself, on the reliability of Ukraine as a partner in the area of justice and home affairs, on efforts of the government to control its borders, on the economic benefits from visa a free regime etc. It should be in no way linked during the discussion or in a public campaign with the free movement of labour or the issue of EU membership. Although it seems very natural to link these issues the result is counterproductive and creates more resistance than support to granting visa free travel to Ukrainians.
Recommendations for Actions
1. Delivering results and improving Ukraine’s image. Ukraine and other eastern European countries have to carry out fundamental reforms that will help to protect them and the EU against organised crime and irregular migration. They have to introduce biometric passports, modernize their border crossing points, built reception centres for asylum seekers, establish closer cooperation with Europol, Eurojust, Frontex and Interpol, and strengthen the fight against corruption and organised crime. This will be the most convincing argument for garnering increased support for visa liberalisation. At the same time significant resources have to be invested in information campaigns to ensure that the efforts inside the country are well known and have a positive effect on visa dialogue.
2. Sending right messages across. A clear public explanation of the political importance, economic profitability and positive impact of visa liberalisation for EU Member States and the formulation of the right messages in this respect are of key importance for the success of the campaign for removal of visas for Ukrainians. As was already mentioned, the messages have to be positive and not linked with issue of free movement of labour or membership prospects. Ukrainian authorities together with relevant NGOs and lobbying group have to formulate a list of relevant messages which should be used in work with EU political circles, public administration and media. These messages could be as follows:
• The introduction of a visa free regime for Ukrainian opens huge economic opportunities for EU business and tourists industries.
• A free visa regime will help to focus on the fight against illegal migration and human trafficking.
• A free visa regime will improve border control and control of movement of persons.
• A free visa regime will help reform the country and provide a greater incentive for Ukraine (at no cost for the EU Member States).
• Visa regimes are obsolete, left over from cold war times and do not help to solve any of the important EU internal problems. They create artificial borders and dividing lines. The introduction of a free visa regime is the moral and political duty of the EU.
3. Knowing each other better. There is an increased need to intensifying contacts on different levels – youth exchange, student programs, cultural and business conferences and seminars etc. The Ukrainian government and the EU could elaborate a special program for strengthening and developing inter-human links and contacts.
4. Strengthening political links and dialogue at the highest level. The political leadership of Ukraine has to adopt a focused program to intensify contacts with their EU counterparts in order to strengthen their support for a visa free regime for Ukraine. It is not only for the president and prime minister, but also for ministers of internal affairs, justice and finance, who should be very actively involved into this business.
5. Media and lobbying campaign. It would be advisable for the Ukrainian government to elaborate special projects together with EU leading media (for ex. Euronews) and lobbying groups to work with EU decision makers and public to facilitate introduction of non visa regime.
This analysis has been prepared within the frames of international cooperation activity conducted by EWB with the support of Euroepan Programme of the International Rennaisance Foundation
