The South Sudan (Sanctions) (EU Exit) Regulations 2019

Made: 4th March 2019

Laid before Parliament: 6th March 2019

Coming into force in accordance with regulation 1(2)

The Secretary of State , in exercise of the powers conferred by sections 1(1)(a) and (c) and (3), 3(1)(a), (b)(ii), (d)(i) and (ii), 4, 5, 9(2)(a), 10(2)(a) and (c), (3) and (4), 11(2) to (9), 13, 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(1) and 62(4) to (6) of, and paragraphs 2(b), 4(b), 5(a)(ii) and (b), 6(a)(ii) and (b), 10(b), 11(a)(ii), 13(b), (h), (k), (l), (m), (n) and (w), 14(a), (f) and (k), 17(a), 19(a), 20, 21 and 27 of Schedule 1 to, the Sanctions and Anti-Money Laundering Act 2018 , 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:

PART 1 — General

Citation and commencement

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• (1) These Regulations may be cited as the South Sudan (Sanctions) (EU Exit) Regulations 2019.

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

Interpretation

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In these Regulations—

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

• “ARCSS” means the Agreement on the Resolution of the Conflict in the Republic of South Sudan done at Addis Ababa on 17 August 2015 ;

• “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);

• “CEMA” means the Customs and Excise Management Act 1979 ;

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

• “the Committee” means the Committee of the Security Council established in accordance with paragraph 16 of resolution 2206;

• “conduct” includes acts and omissions;

• “director disqualification licence” means a licence under regulation 33A;

• “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 EU South Sudan Regulation” means Council Regulation (EU) No 2015/735 of 7 May 2015, concerning restrictive measures in respect of the situation in South Sudan, and repealing Regulation (EU) No 748/2014 , as it has effect in EU law;

• “resolution 2206” means resolution 2206 (2015) adopted by the Security Council on 3 March 2015;

• “resolution 2290” means resolution 2290 (2016) adopted by the Security Council on 31 May 2016;

• “resolution 2428” means resolution 2428 (2018) adopted by the Security Council on 13 July 2018;

• “R-ARCSS” means the Revitalised Agreement on the Resolution of the Conflict in the Republic of South Sudan done at Addis Ababa on 12 September 2018 ;

• “serious human rights violation or abuse” means a serious violation or abuse of any of the human rights specified in regulation 4(2)(f);

• “trade licence” means a licence under regulation 34;

• “Treasury licence” means a licence under regulation 33(1);

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

Application of prohibitions and requirements outside the United Kingdom

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• (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 this regulation a “relevant prohibition” means any prohibition imposed by—

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

• (b) Part 3 (Finance),

• (c) Part 5 (Trade), or

• (d) 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 this regulation, a “relevant requirement” means any requirement imposed—

• (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) 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.

Purposes

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• (1) The regulations contained in this instrument that are made under section 1 of the Act have the following purposes—

• (a) compliance with the relevant UN obligations, and

• (b) the additional purposes mentioned in paragraph (2).

• (2) Those additional purposes are—

• (a) promoting the peace, stability and security of South Sudan,

• (b) encouraging the resolution of the political crisis and armed conflicts in South Sudan, including the implementation of the ARCSS and R-ARCSS,

• (c) promoting the effective delivery of the mandates of the regional or international monitoring and peace-support missions and mechanisms in South Sudan, including—

• (i) the Ceasefire Transitional Security Arrangements Monitoring and Verification Mechanism ,

• (ii) the Revitalised Joint Monitoring and Evaluation Commission , and

• (iii) the United Nations Mission in South Sudan ,

• (d) promoting respect for humanitarian assistance activities in South Sudan,

• (e) promoting compliance with the rules of international humanitarian law applicable to the armed conflicts in South Sudan, and

• (f) promoting respect for human rights in South Sudan, including, in particular, respect for—

• (i) the right to life of persons in South Sudan;

• (ii) the right of persons in South Sudan not to be held in slavery or required to perform forced or compulsory labour;

• (iii) the right of persons not to be subjected to torture or cruel, inhuman or degrading treatment or punishment in South Sudan, including in the context of—

• (aa) violence against persons on the basis of their ethnicity,

• (bb) rape and other forms of sexual and gender-based violence, or

• (cc) recruitment or use of children as soldiers;

• (iv) the right to liberty and security of persons in South Sudan, including freedom from arbitrary arrest, detention or enforced disappearance,

• (v) the right to a fair trial of persons charged with criminal offences in South Sudan;

• (vi) the rights of journalists, human rights defenders, civil society activists and other persons in South Sudan to freedom of expression and peaceful assembly;

• (vii) the enjoyment of rights and freedoms in South Sudan without discrimination, including 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,

otherwise than by compliance with the relevant UN obligations.

• (3) In this regulation, “the relevant UN obligations” means—

• (a) the obligations that the United Kingdom has by virtue of paragraph 12 of resolution 2206 (asset-freeze) to take the measures required by that provision in respect of persons for the time being named for the purposes of that provision by the Security Council or the Committee;

• (b) the obligations that the United Kingdom has by virtue of paragraph 12 of resolution 2206 (asset-freeze) in respect of persons—

• (i) acting on behalf of or at the direction of, or

• (ii) owned or controlled by,

the persons for the time being named by the Security Council or the Committee for the purposes of paragraph 12 of resolution 2206;

• (c) the obligations that the United Kingdom has by virtue of paragraph 4 of resolution 2428 (arms embargo).

• (4) In this regulation, any reference to the obligations that the United Kingdom has by virtue of paragraph 12 of resolution 2206 (asset-freeze) is to that provision read with—

• (a) paragraphs 6 to 8 of resolution 2206;

• (b) paragraphs 8 to 10 of resolution 2290;

• (c) paragraphs 13 to 17 of resolution 2428.

PART 2 — Designation of persons

Power to designate persons

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• (1) The Secretary of State may designate persons by name in accordance with regulation 5A (conditions for the designation of persons by name) for the purposes of any of the following—

• (a) regulations 12 to 16 (Finance); ...

• (aa) regulation 17A (Director disqualification sanctions);

• (b) regulation 18 (Immigration).

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

Criteria for designating a person

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• (1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

• (2) For the purposes of regulation 5A (conditions for the designation of persons) an “involved person” means a person who—

• (a) is or has been involved in a relevant activity,

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

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

• (3) In this regulation a “relevant activity” means—

• (a) the commission of a serious human rights violation or abuse in South Sudan;

• (b) the commission of a violation of international humanitarian law in South Sudan;

• (c) a breach of the ARCSS or R-ARCSS;

• (d) an attack against, or obstruction of the activities of, diplomatic personnel in South Sudan or the regional or international monitoring and peace-support missions and mechanisms mentioned in paragraphs (i) to (iii) of regulation 4(2)(c);

• (e) obstruction of the delivery or distribution of, or access to, humanitarian assistance in South Sudan;

• (f) the misappropriation of South Sudanese state funds, or taking action that may lead to such misappropriation;

• (g) the illicit exploitation of oil or any other natural resource in South Sudan;

• (h) any other action, policy or activity which threatens the peace, stability and security of South Sudan or undermines efforts to resolve the political crisis and armed conflicts in South Sudan.

• (4) Any reference in this regulation to being involved in a relevant activity includes being so involved in whatever way, and wherever, any actions constituting the involvement take place, and in particular includes—

• (a) being responsible for, engaging in, providing support for, or promoting, any such activity;

• (b) providing financial services, or making available funds or economic resources, that could contribute to any such activity;

• (c) being involved in the supply to South Sudan of military goods or military technology or of material related to such goods or technology, or in providing financial services relating to such supply;

• (d) being involved in the supply to South Sudan of goods or technology which could contribute to any such activity, or in providing financial services relating to such supply;

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

• (5) In this regulation “relevant provision” means—

• (a) any provision of Part 3 (Finance) or Part 5 (Trade);

• (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 3 (Finance) or Part 5 (Trade);

• (c) any provision of resolution 2206 or 2428.

• (6) Nothing in any sub-paragraph of paragraph (3) or (4) is to be taken to limit the meaning of any of the other sub-paragraphs of those paragraphs.

• (7) In this regulation, “military goods” and “military technology” have the meanings given by Part 5.

Meaning of “owned or controlled directly or indirectly”

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

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

• (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 (if P chose to) be able, in most cases or in significant respects, by whatever means and... whether directly or indirectly, to achieve the result that affairs of C are conducted in accordance with P's wishes.

Notification and publicity where designation power used

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• (1) Paragraph (2) applies where the Secretary of State—

• (a) has made a designation under regulation 5, or

• (b) has by virtue of section 22 of the Act varied or revoked a designation made under that regulation.

• (2) The Secretary of State—

• (a) must without delay take such steps as are reasonably practicable to inform the designated person of the designation, variation or revocation, and

• (b) must take steps to publicise the designation, variation or revocation.

• (3) The information given under paragraph (2)(a)—

• (a) where the Secretary of State designates a person under the standard procedure, must include a statement of reasons;

• (b) where the Secretary of State designates a person under the urgent procedure, must include a statement—

• (i) that the designation is made under the urgent procedure,

• (ii) identifying the relevant provision by reference to which the Secretary of State considers that condition B is met in relation to the person, and

• (iii) setting out why the Secretary of State considers that condition C is met.

• (3A) Where the Secretary of State designates a person under the urgent procedure, the Secretary of State must, after the end of the period mentioned in paragraph (7) of regulation 5A (conditions for the designation of persons by name) or, if the Secretary of State has made a certification under paragraph (7)(b) of that regulation, the period mentioned in paragraph (8) of that regulation, but otherwise without delay—

• (a) in a case where the person ceases to be a designated person, take such steps as are reasonably practicable to inform the person that they have ceased to be a designated person, or

• (b) in any other case, take such steps as are reasonably practicable to give the person a statement of reasons.

• (4) In this regulation, a “statement of reasons” means a brief statement of the matters that the Secretary of State knows, or has reasonable grounds to suspect, in relation to the person—

• (a) in the case of a designation under the standard procedure, which have led the Secretary of State to make the designation, and

• (b) in the case of a designation under the urgent procedure, as a result of which the person does not cease to be a designated person at the end of the period mentioned in regulation 5A(7) or (8) (as the case may be).

• (5) Matters that would otherwise be required by paragraph (4) to be included in a statement of reasons may be excluded from it where the Secretary of State considers that they should be excluded—

• (a) in the interests of national security or international relations,

• (b) for reasons connected with the prevention or detection of serious crime in the United Kingdom or elsewhere, or

• (c) in the interests of justice.

• (6) The steps taken under paragraph (2)(b) must—

• (a) unless one or more of the restricted publicity conditions is met, be steps to publicise generally—

• (i) the designation, variation or revocation, and

• (ii) in the case of a designation, the statement of reasons;

• (b) if one or more of those conditions is met, be steps to inform only such persons as the Secretary of State considers appropriate of the designation, variation or revocation and (in the case of a designation) of the contents of the statement of reasons.

• (7) The “restricted publicity conditions” are as follows—

• (a) the designation is of a person believed by the Secretary of State to be an individual under the age of 18;

• (b) the Secretary of State considers that disclosure of the designation, variation or revocation should be restricted—

• (i) in the interests of national security or international relations,

• (ii) for reasons connected with the prevention or detection of serious crime in the United Kingdom or elsewhere, or

• (iii) in the interests of justice.

• (8) Paragraph (9) applies if—

• (a) when a designation is made, one or more of the restricted publicity conditions is met, but

• (b) at any time when the designation has effect, it becomes the case that none of the restricted publicity conditions is met.

• (9) The Secretary of State must—

• (a) take such steps as are reasonably practicable to inform the designated person that none of the restricted publicity conditions is now met, and

• (b) take steps to publicise generally the designation and the statement of reasons relating to it.

Confidential information in certain cases where designation power used

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