Ukraine-Moldova race to EU visa-free regime

This will probably make boring reading, but for those with some stamina to go through typically unreadable, but important, EU-speak here is a comparison of how Ukraine and Moldova perform on their way towards a visa-free regime with the EU. The assessment is based on the recent progress reports by the European Commission on the implementation of the Action Plans on visa liberalisation by Ukraien and Moldova. (The relevant documents are here: Action Plans for Ukraine and Moldova outlining the conditions; and the progress reports for Ukraine and Moldova evaluating progress September 2011).

The progress reports are mainly concerned with legislative adjustments, which correspond to Phase 1 of the Action Plan. Evaluating realities will come next years. In order to somehow quantify the conclusions I also decided to give a ‘plus’ to the country that is ahead with some reforms, and a ‘minus’ to the country that lags behind the other (a simplified version of what ESI did with the Schengen White List project). Giving just plusses and minuses is of course quite simplistic, but nonetheless a useful exercise for a ‘quick and dirty’ look at where Moldova and Ukraine stand in relation to each other. I also decided to give additional bonuses in the form of half or full plusses to some areas which are much more important than the others (like introduction of biometric passports – a full plus, or half-pluses to having a half-functioning migration service or having implementing protocols for readmission agreements with EU member states). Finally, the table does not mention all the areas or laws mentioned in the progress reports, but only those where (comparative) value judgements are made and progress is assessed. So here is the table on who does better in the visa-dialogue with the EU: Ukraine or Moldova?

Introduction of the progress reports

EU requirements Ukraine’s performance Moldova’s performance Who’s ahead
Readmission agreements Certain issues remain subject to further examination ( p 1) No particular problems were raised. MD
Fraud of supporting documents for visa applications Ukraine declared its willingness to cooperate. (p. 2) Moldova designated contact points within its administration to allow EU member states consulates to quickly verify the authenticity of certain documents. MD

Block 1: Document security, including biometrics

Ukraine Moldova 
Legal framework for issuance of biometric passports Legislation is under preparation ( p. 2) Legislative framework appears to be in place. It is a consolidated framework (p.2) MD (+1)
Action plan for roll-out of biometric passports Being prepared (p.2) Clear schedule still to be provided (MD issues biometric passports, but not in consulates) (p.2) MD

Block 2: Irregular migration, including readmission

Ukraine Moldova
Legislative framework in border management Very good progress. State Migration service set up, but not at full capacity. ( p.3) Legislative framework is well-advanced. Good progress. Work remains to be done. Attention to establishment of Migration and Border service (p.3) UA
Legislative measures in area of asylum Steps have been taken to start aligning legislation to EU standards. Additional efforts needed. Serious concerns raised by NGOs should be addressed. ( p.4) MD adopted the necessary legislation with some exceptions (p.3) MD
Border management Progress made (p.4) Progress made (p. 4) -
Legal framework for migration policy UA needs to adopt legal framework. Some laws submitted to parliament  (p.5) MD needs to consolidate legal framework. Most of the legislation is in place. ( p.5) MD
Institutional performance in managing migration State Migration Service building up resources (p. 6) No mention of similar progress. UA (+0.5)
Readmission agreements Concluded with Russia, Moldova, Turkey, Turkmenistan, Uzbekistan and Vietnam. Pursuing negotiations with Belarus, Central Asia, Afghanistan, China, India, Iraq etc. (p. 6) In the process of concluding with Russia, Bosnia, Montenegro. Signed with Serbia. (p.5) UA
Implementing protocols to Readmission agreement with EU No Implementing  protocols with EU member states have been concluded so far (p. 6) Implementing protocols already concluded with a considerable number of EU member states and is actively pursuing negotiations with others. Good results achieved. (p. 5) MD (+0.5)
Action plan for National Migration Management Strategy Action plan has been prepared. (p. 6) Action Plan is being developed UA
Establish mechanism for monitoring migration flows Ukraine started preparations for national database. Migration profile has been prepared. No mechanism to update profile has been established. (p. 7) Work on migration profile is well-advanced. It is likely that the profile will be updated and widely used. ( p. 6) MD
Asylum policy: adopting legislation Steps have been taken to start aligning with EU standards. Additional efforts are needed (p7) Most of the necessary legislation has been adopted. (p. 6) MD

Block 3: Public Order and Security

Ukraine Moldova
General assessment Good progress. More efforts on law-enforcement cooperation needed. (p. 7) Good progress. More efforts on law-enforcement cooperation needed. (p. 6) -
Law on trafficking in human beings … is under preparation. (p.8) Legislative framework has been established. Consolidation needed. (p. 7) MD
Anti-corruption legislation Adopted in April 2011 (p.8 ) Legislative process being completed (p.8 ) UA
Compliance with anti-corruption recommendations by GRECO Implemented only 12 out of 25 recommendations.  (p. 9) Substantial loopholes left. Not clear how many and whether recommendations are implemented (p.8) UA
Set-up of anti-corruption agency Important efforts are needed. No information provided on the establishment of such agency. (p.10) Centre for Combating Economic Crime and Corruption exists. Need to strengthen guarantees of its effective independence, efficiency etc. (p.8) MD
Legal framework for preventing money laundering Appears to be in place. Several laws adopted. (p.10) Is broadly consolidated. Significant efforts have been made. Further positive steps. (p.9) MD
Anti-drug efforts Legislative framework appears to be in place. Institutional framework – in place since April 2011. Memorandum of understanding with EMCDAA was signed in January 2010.  (p.11) Legal framework in place since January 2011. Institutional framework appears to be consolidated since June 2011. There have been contacts with EMCDAA. MD should further strengthen dialogue. (p.9) UA
UN and CoE conventions on human rights and fight against terrorism Adopted all but one relevant conventions (p. 11) Adopted all relevant conventions (p.10) MD
Agreement with Eurojust Legal framework generally in place. Negotiations with Eurojust have resumed. (p.12) Legal framework largely in place, but some elements still under preparation. Contacts and exchange of views with Eurojust are ongoing. (p.11) UA
Data protection Law adopted in June 2010, entered into force January 2011. Law on violation of legislation on personal data protection adopted in June 2011. (p.13) Law adopted in July 2011. Law not in force. Requires further evaluation. Progress in the filed in precondition for agreements with Europol and Eurojust. (p.12)  UA

Block 4: External Relations and Fundamental Rights

Ukraine Moldova
General assessment Work is under way (p.14) MD is well advanced in adopting the legislative framework (p.12) MD
Freedom of movement within the country Need for legal amendments. Government is considering proposed amendments. (p14) MD improved the regulatory framework through ‘Law on foreigners’, but further clarifications and amendments might be necessary. (p.13) None (MD – progress noted but insufficient)
Citizen’s rights including protection of minorities Anti-discrimination legislation has not been adopted. (p.15) Comprehensive anti-discrimination law awaiting approval by parliament. Registered Islamic League, promoting representatives of Roma community to positions enabling them to pursue Roma-rights. (p.14) -
Specify conditions for acquisition of citizenships Carefully considering the situation with Transnistrian residents. Applying special measures to confirm citizenship, through requesting additional information on family members and relatives.(p.15) -

Moldova-Ukraine: 14 vs 9

Moldova gets 14.5 plusses (13 plusses + 1 bonus point for having switched to the issuance of biometric passports only and 0.5 for the implementing protocols of the readmission agreement with EU members states). Correspondingly Moldova gets 9 minuses for those areas where it lags behind Ukraine. The minuses for Moldova are related to: the legislative framework in border management and the creation of a Migration Service (now the Border Guards Service of Moldova and the Migration and Asylum Bureau of the Ministry of Interior should be merged, which would result in the creation of Border Police under the Ministry of Interior), the signature of readmission agreements with Russia and several half- or non-European states from Turkey to China, anti-corruption legislation, anti-drug efforts and cooperation with the corresponding EU agency (EMCDAA) and negotiations with Eurojust on a cooperation agreements.

Ukraine gets 9.5 plusses (9 points + a 0.5 bonus for the Migration Service. The bonus is not so much for the functioning of the service ‘which needs to be consolidated’ but more due to the fact that the corresponding counterpart in Moldova has not even been mentioned in the report). The areas where Ukraine clearly needs to do some catching up are in the signing of Implementing protocols for the Readmission Agreement with the EU and moving faster on the roll-out of biometric passports. Whereas Moldova switched to the issuance of biometric passports only in January 2011 (except in consulates), Ukraine is still stuck with its policy process. In September the Ukrainian parliament adopted a law opening the way for the issuance of biometric passports, but then president Yanukovich vetoed it in October and the Government started to work on a new bill. In other words on biometric passports Moldova is at least a couple of years ahead, since it takes time and money to equip all passport-issuance authorities (so-called UOVIRRs) as well as all the border crossing points with the necessary equipment to produce and read biometric passports. It also seems that Moldova is more advanced on several fronts when it comes to legislative harmonisation with the EU on migration and asylum policy, combating trafficking in human beings, and preventing money laundering. Moldova is also more advanced in the development of a migration profile. One word of caution relates to the setting up of an anti-corruption agency. Ukraine is supposed to set up one, whereas Moldova has had one for over a decade. Yet in the case of Moldova, the anti-corruption centre often became an instrument in the hands of the high-, mid- and even low-level officials not so much to combat corruption as to benefit from it through the extraction of rents and pressures on businesses.

Finally, adopting laws is good, but implementing them is much tougher and longer. This is where the real test for Moldova and Ukraine will come. The next EU progress reports should start looking into the murkier area of how laws are implemented, not just how fast they are adopted (and even at this stage I am not very impressed by the speed of legislative adjustments. If the two countries have such lacunae on adopting laws, how long will it take to implement them?) Judging from the current report I would say the next big test for Moldova is the setting up of the Border Police and for Ukraine to move much faster to issuing biometric passports only (instead parallel issuance of both types of passports).

PS. Once Russia and EU publish their ‘common steps’ towards visa liberalisation in December, it will be interesting to look into who’s faster in fulfilling the necessary conditions in a three-way race between Russia, Ukraine and Moldova.