The Burma (Sanctions) (EU Exit) Regulations 2019

2019 No. 136

Sanctions

The Burma (Sanctions) (EU Exit) Regulations 2019

Made 29th January 2019

Laid before Parliament 31th January 2019

Coming into force in accordance with regulation 1(2)

The Secretary of State1, in exercise of the powers conferred by sections 1(1)(c) and (3)(b), 3(1)(a), (b)(ii) and (d)(i) and (ii), 4, 5, 9(2)(a), 10(2)(a) and (c), (3) and (4), 11(2) to (9), 15(2)(a) and (b), (3), (4)(b), (5) and (6), 16, 17(2) to (9), 19, 20, 21(1), 54(1) and (2)(a), 56 and 62(4) to (6) of, and paragraphs 2(b), 4(b) and (c), 5(a)(ii) and (b), 6(a)(ii) and (b), 11(a)(ii), 13(b), (h), (k), (l), (m) and (n), 14(a), (f) and (k), 17(a), 19(a), 20 to 23 and 27 of Schedule 1 to, the Sanctions and Anti-Money Laundering Act 20182, and having decided, upon consideration of the matters set out in section 2(2) and 56(1) of that Act, that it is appropriate to do so, makes the following Regulations:

1 General

PART 1

General

S-1 Citation and commencement

Citation and commencement

1.—(1) These Regulations may be cited as the Burma (Sanctions) (EU Exit) Regulations 2019.

(2) These Regulations come into force in accordance with regulations made under section 56 of the Act.

S-2 Interpretation

Interpretation

2. In these Regulations—

“the Act” means the Sanctions and Anti-Money Laundering Act 2018;

“arrangement” includes any agreement, understanding, scheme, transaction or series of transactions, whether or not legally enforceable (but see paragraph 12 of Schedule 1 for the meaning of that term in that Schedule);

“Burma” means the territory of the Republic of the Union of Myanmar;

“the Burma security forces” means the Tatmadaw and the Myanmar Police Force, including the Border Guard Police, and any person acting on their behalf or under their command or control;

“CEMA” means the Customs and Excise Management Act 19793;

“the Commissioners” means the Commissioners for Her Majesty’s Revenue and Customs;

“conduct” includes acts and omissions;

“document” includes information recorded in any form and, in relation to information recorded otherwise than in legible form, references to its production include producing a copy of the information in legible form;

“the Dual-Use Regulation” means Council Regulation (EC) No 428/2009of 5 May 2009 setting up a Community regime for the control of exports, transfer, brokering and transit of dual-use items;

“the EU Burma Regulation” means Council Regulation (EU) No 401/2013 of 2 May 2013 concerning restrictive measures in respect of Myanmar/Burma and repealing Regulation (EC) No 194/20084, as it has effect in EU law;

“the Government of Burma” includes its public bodies, corporations or agencies, or any person acting on its behalf or at its direction;

“humanitarian assistance activity” includes the work of international and non-governmental organisations carrying out relief activities in Burma for the benefit of the civilian population there;

“serious human rights violation or abuse” means a serious violation or abuse of any of the human rights specified in regulation 4;

“the Tatmadaw” means the Myanmar Armed Forces;

“trade licence” means a licence under regulation 36;

“Treasury licence” means a licence under regulation 35(1);

“United Kingdom person” has the same meaning as in section 21 of the Act.

S-3 Application of prohibitions and requirements outside the United Kingdom

Application of prohibitions and requirements outside the United Kingdom

3.—(1) A United Kingdom person may contravene a relevant prohibition by conduct wholly or partly outside the United Kingdom.

(2) Any person may contravene a relevant prohibition by conduct in the territorial sea.

(3) In paragraphs (1) and (2) a “relevant prohibition” means any prohibition imposed—

(a)

(a) by regulation 9(2) (confidential information),

(b)

(b) by Part 3 (Finance),

(c)

(c) by Part 5 (Trade), or

(d)

(d) by a condition of a Treasury licence or a trade licence.

(4) A United Kingdom person may comply, or fail to comply, with a relevant requirement by conduct wholly or partly outside the United Kingdom.

(5) Any person may comply, or fail to comply, with a relevant requirement by conduct in the territorial sea.

(6) In paragraphs (4) and (5) a “relevant requirement” means any requirement imposed—

(a)

(a) by or under Part 7 (Information and records), or by reason of a request made under a power conferred by that Part, or

(b)

(b) by a condition of a Treasury licence or a trade licence.

(7) Nothing in this regulation is to be taken to prevent a relevant prohibition or a relevant requirement from applying to conduct (by any person) in the United Kingdom.

S-4 Purposes

Purposes

4. The purposes of the regulations contained in this instrument that are made under section 1 of the Act are to encourage the Burma security forces to comply with international human rights law and to respect human rights, including in particular, to—

(a) respect the right to life of persons in Burma, particularly in relation to the Rohingya;

(b) respect the right of persons in Burma not to be subjected to forced deportation or forcible transfer from Burma, particularly in relation to the Rohingya;

(c) respect the right of persons not to be subjected to torture or cruel, inhuman or degrading treatment or punishment in Burma;

(d) respect the right to liberty and security, including refraining from the arbitrary arrest and detention of persons in Burma;

(e) afford persons in Burma charged with criminal offences the right to a fair trial;

(f) afford journalists, human rights defenders and other persons in Burma the right to freedom of expression and peaceful assembly;

(g) secure the human rights of persons in Burma without discrimination, in particular in relation to discrimination on the basis of a person’s sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

2 Designation of persons

PART 2

Designation of persons

S-5 Power to designate persons

Power to designate persons

5.—(1) The Secretary of State may designate persons by name for the purposes of any of the following—

(a)

(a) regulations 11 to 15 (Finance); and

(b)

(b) regulation 17 (Immigration).

(2) The Secretary of State may designate different persons for the purposes of the provisions mentioned in each of the sub-paragraphs of paragraph (1).

S-6 Designation criteria

Designation criteria

6.—(1) The Secretary of State may not designate a person under regulation 5 unless the Secretary of State—

(a)

(a) has reasonable grounds to suspect that that person is an involved person, and

(b)

(b) considers that the designation of that person is appropriate, having regard to—

(i) the purposes stated in regulation 4, and

(ii) the likely significant effects of the designation on that person (as they appear to the Secretary of State to be on the basis of the information that the Secretary of State has).

(2) In this regulation an “involved person” means a person who is, or has been, a member of the Burma security forces (see regulation 2) and who—

(a)

(a) is or has been involved in the commission of a relevant activity in Burma,

(b)

(b) is owned or controlled directly or indirectly (within the meaning of regulation 7) by a person who is or has been so involved,

(c)

(c) is acting on behalf of or at the direction of a person who is or has been so involved, or

(d)

(d) is a member of, or associated with, a person who is or has been so involved.

(3) Any reference in this regulation to being involved in the commission of a “relevant activity” in Burma includes being so involved in whatever way and wherever any actions constituting the involvement take place, and in particular includes—

(a)

(a) being responsible for, engaging in, providing support for, or promoting—

(i) a serious human rights violation or abuse;

(ii) the obstruction of a humanitarian assistance activity; or

(iii) the obstruction of an independent investigation into a serious human rights violation or abuse in Burma;

(b)

(b) providing financial services, or making available funds or economic resources, that could contribute to any serious human rights violation or abuse;

(c)

(c) being involved in the supply to Burma of restricted goods or restricted technology or of material related to such goods or technology, or in providing financial services relating to such supply;

(d)

(d) being involved in the supply to Burma of goods or technology which could contribute to any serious human rights violation or abuse, or in providing financial services relating to such supply;

(e)

(e) being involved in assisting the contravention or circumvention of any relevant provision.

(4) In this regulation “relevant provision” means—

(a)

(a) any provision of Part 5 (Trade);

(b)

(b) any provision of the law of a country other than the United Kingdom made for purposes corresponding to a purpose of any provision of Part 5 (Trade).

(5) Nothing in any sub-paragraph of paragraph (3) is to be taken to limit the meaning of any of the other sub-paragraphs of that paragraph.

(6) In this regulation, “restricted goods” and “restricted technology” have the meanings given by Part 5.

S-7 Meaning of “owned or controlled directly or indirectly”

Meaning of “owned or controlled directly or indirectly”

7.—(1) A person who is not an individual (“C”) is “owned or controlled directly or indirectly” by another person (“P”) if either of the following two conditions is met (or both are met).

(2) The first condition is that P—

(a)

(a) holds directly or indirectly more than 50% of the shares in C,

(b)

(b) holds directly or indirectly more than 50% of the voting rights in C, or

(c)

(c) holds the right directly or indirectly to appoint or remove a majority of the board of directors of C.

(3) Schedule 1 contains provision applying for the purpose of interpreting paragraph (2).

(4) The second condition is that it is reasonable, having regard to all the circumstances, to expect that P would...

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