The Democratic Republic of the Congo (Sanctions) (Overseas Territories) Order 2020

Made: 11th November 2020

Laid before Parliament: 18th November 2020

Coming into force in accordance with article 1(1)

At the Court at Windsor Castle, the 11th day of November 2020Present,The Queen’s Most Excellent Majesty in Council

Her Majesty, in exercise of the powers conferred on Her by section 1 of the United Nations Act 1946[^f00002] and section 63(3)(c) and (4) of the Sanctions and Anti-Money Laundering Act 2018[^f00003], is pleased, by and with the advice of Her Privy Council, to make the following Order:

Citation, commencement and extent

1

• (1) This Order may be cited as the Democratic Republic of the Congo (Sanctions) (Overseas Territories) Order 2020 and comes into force immediately after both the Sanctions (EU Exit) (Miscellaneous Amendments) Regulations 2020[^f00004] and the Sanctions (EU Exit) (Miscellaneous Amendments) (No. 3) Regulations 2020[^f00005] have come into force in the United Kingdom.

• (2) This Order extends to each British overseas territory listed in Schedule 1.

Extension of the Democratic Republic of the Congo (Sanctions) (EU Exit) Regulations 2019

2

The Democratic Republic of the Congo (Sanctions) (EU Exit) Regulations 2019[^f00006] as amended from time to time extend to each British overseas territory listed in Schedule 1 with the modifications specified in Schedule 2.

Extension of the Sanctions and Anti-Money Laundering Act 2018

3

Subject to the modification set out in paragraph (c), the following provisions of the Sanctions and Anti-Money Laundering Act 2018 extend to each British overseas territory listed in Schedule 1 for the purposes of the Democratic Republic of the Congo (Sanctions) (EU Exit) Regulations 2019 as modified and extended to the territories by this Order—

• (a) section 44 (protection for acts done for purposes of compliance);

• (b) section 52(3) (Crown application);

• (c) section 53 (saving for prerogative powers), except that, in its application to a particular British overseas territory, the reference in subsection (1) of that section to the United Kingdom is to be read as a reference to that territory.

Exclusion of UN designated persons from the Territory

4

• (1) A person who is for the time being named for the purposes of paragraph 13 of resolution 1807 by the Security Council or the Committee must not enter, transit or remain in the Territory.

• (2) Paragraph (1) does not apply to a person who—

• (a) belongs to the Territory, or

• (b) in respect of the Sovereign Base Areas, is permitted to reside in the Sovereign Base Areas under the law applicable to the Sovereign Base Areas.

• (3) Paragraph (1) does not apply to a person if—

• (a) the application of that paragraph to that person would be contrary to the United Kingdom’s obligations under—

• (i) the European Convention on Human Rights, or

• (ii) the Refugee Convention, or

• (b) the person has been exempted from the application of paragraph (1) under a process applying by virtue of a resolution adopted by the Security Council.

• (4) The Governor may, with the consent of the Secretary of State, direct that, in relation to any person falling within paragraph (1) whose name is specified, or who is of a specified description, that paragraph has effect subject to specified exceptions.

• (5) A direction under this article—

• (a) may contain conditions;

• (b) must be of a defined duration (and that duration may be expressed in any way, including, for example, being expressed in a way such that the direction ceases to have effect on, or within a specified period after, the occurrence of a specified event).

• (6) The Governor may, with the consent of the Secretary of State, vary, revoke or suspend a direction under this article at any time.

• (7) On the issue, variation, revocation or suspension of a direction under this article, the Governor may take such steps as the Governor considers appropriate to publicise the issue, variation, revocation or suspension of the direction.

• (8) The Governor may, to such extent and subject to such restrictions and conditions as the Governor thinks proper, delegate or authorise the delegation of any of the Governor’s powers under this article to any person, or class or description of persons, and any references in this article to the Governor are to be construed accordingly.

• (9) In the exercise of any power conferred on the Governor by this article, the Governor is to act in their discretion.

• (10) In the application of this article to a particular British overseas territory, the expression “the Territory” means that territory.

• (11) For the purposes of this article, a person (“P”) belongs to the Territory if—

• (a) in respect of Anguilla, P is an Anguillian (within the meaning given to that term in the law of Anguilla);

• (b) in respect of the Cayman Islands, P is a Caymanian (within the meaning given to that term in the law of the Cayman Islands);

• (c) in respect of the Falkland Islands, P has Falkland Islands status (within the meaning given to that term in the law of the Falkland Islands);

• (d) in respect of Montserrat, P is a Montserratian (within the meaning given to that term in the law of Montserrat);

• (e) in respect of Pitcairn, P has the right of abode in Pitcairn under the law of Pitcairn;

• (f) in respect of St Helena, P has St Helenian status (within the meaning given to that term in the law of St Helena);

• (g) in respect of Tristan da Cunha, P has the right of abode in Tristan da Cunha under the law of Tristan da Cunha;

• (h) in respect of the Turks and Caicos Islands, P is a Turks and Caicos Islander (within the meaning given to that term in the law of the Turks and Caicos Islands);

• (i) in respect of the Virgin Islands, P belongs to the Virgin Islands (within the meaning given to that term in the law of the Virgin Islands).

• (12) In this article—

• “the Committee” means the Committee of the Security Council established in accordance with paragraph 8 of resolution 1533 (2004) adopted by the Security Council on 12 March 2004;

• “the European Convention on Human Rights” means the Convention for the Protection of Human Rights and Fundamental Freedoms done at Rome on 4 November 1950 and the Protocols to the Convention[^f00007];

• “the Governor” means, in relation to the Territory, the person holding or acting in the office of Governor of the Territory, or, if there is no such office, the officer for the time being administering the Territory;

• “Pitcairn” means Pitcairn, Henderson, Ducie and Oeno Islands;

• “the Refugee Convention” means the Convention relating to the Status of Refugees done at Geneva on 28 July 1951 and the Protocol to the Convention[^f00008];

• “resolution 1807” means resolution 1807 (2008) adopted by the Security Council on 31 March 2008;

• “Security Council” means the Security Council of the United Nations;

• “the Sovereign Base Areas” means the Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus;

• “specified” means specified in a direction under this article.

SCHEDULE 1 — British overseas territories

• Anguilla

• British Antarctic Territory

• British Indian Ocean Territory

• Cayman Islands

• Falkland Islands

• Montserrat

• Pitcairn, Henderson, Ducie and Oeno Islands

• St Helena, Ascension and Tristan da Cunha

• South Georgia and the South Sandwich Islands

• The Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus

• Turks and Caicos Islands

• Virgin Islands

SCHEDULE 2 — Modifications to be made in the extension of the Democratic Republic of the Congo (Sanctions) (EU Exit) Regulations 2019 to each British overseas territory listed in Schedule 1

1

In regulation 1 (citation and commencement)—

• (a) in the heading, omit “and commencement”;

• (b) omit paragraph (2).

2

In regulation 2 (interpretation)—

• (a) the existing text becomes paragraph (1);

• (b) in that paragraph—

• (i) in the appropriate places, insert the following definitions—

• “aircraft” has the same meaning as it has in section 6(9) of the Act;

• “authorised officer” means, in relation to the Territory—a member of Her Majesty’s forces in the Territory,a police or customs officer of the Territory,a person authorised by the Governor for the purposes of exercising, whether generally or in a particular case, any power conferred by—regulation 41 (finance: powers to request information),regulation 42 (finance: production of documents),regulation 44 (trade: information powers),regulation 46 (general trade licences: inspection of records),regulation 47 (disclosure of information), regulation 47A (finance: disclosure to the Governor), regulation 48A (suspected ships, aircraft or vehicles), orregulation 48B (search warrants), orany person acting under the authority of a person falling within any of paragraphs (a) to (c);

• “financial sanctions licence” means, in relation to the Territory, a licence issued by the Governor under regulation 33(1);

• “the Governor” is to be read in accordance with regulation 4A;

• “Her Majesty’s forces” does not include a force of any country, other than the United Kingdom, that is a member of the Commonwealth;

• “ship” has the same meaning as it has in section 7(14) of the Act;

• “territorial sea of the Territory” means the territorial sea as defined in an enactment applicable in the Territory or, in the absence of such an enactment, the territorial sea adjacent to the Territory;

• “Territory aircraft” means, in relation to the Territory—an aircraft registered in the Territory, oran aircraft which is not registered under the law of a country outside the Territory but is wholly owned by persons each of whom is a Territory person;

• “Territory person” means, in relation to the Territory, a person who is—an individual ordinarily resident in the Territory who is—a British citizen, a British overseas territories citizen, a British National (Overseas) or a British Overseas citizen,a person who under the British Nationality Act 1981[^f00009] is a British subject, ora British protected person within the meaning of that Act, ora body incorporated or constituted under the law of any part of the Territory;

• “Territory ship” means, in relation to the Territory—a ship registered in the Territory, ora ship which is not registered under the law of a country outside the Territory but is wholly owned by persons each of whom is a Territory person;

• “vehicle” means a land transport vehicle.

• (ii) omit the definitions of—

• (aa) “the Commissioners”,

• (bb) “Treasury licence”, and

• (cc) “United Kingdom person”;

• (c) after that paragraph insert—

(2) In the application of these Regulations to a particular British overseas territory, the expression “the Territory” means that territory.

3

In regulation 3 (application of prohibitions and requirements outside the United Kingdom)—

• (a) in the heading, for “United Kingdom” substitute “Territory”;

• (b) in paragraphs (1) and (4), for “United Kingdom person” substitute “Territory person”;

• (c) in paragraphs (1), (4) and (7), for “United Kingdom” substitute “Territory”;

• (d) in paragraphs (2) and (5), after “in the territorial sea” insert “of the Territory”;

• (e) in paragraphs (3) and (6), for “Treasury licence” substitute “financial sanctions licence”.

4

In regulation 4 (purposes), for “The regulations contained in this instrument that are made under section 1 of the Act” substitute “These Regulations”.

5

At the end of Part 1 (General), insert—

(4A) (1) In these Regulations, “the Governor” means, in relation to the Territory, the person holding or acting in the office of Governor of the Territory, or, if there is no such office, the officer for the time being administering the Territory. (2) The Governor may, to such extent and subject to such restrictions and conditions as the Governor thinks proper, delegate or authorise the delegation of any of the Governor’s powers under these Regulations to any person, or class or description of persons, and any references in these Regulations to the Governor are to be construed accordingly. (3) In the exercise of any power conferred on the Governor by these Regulations, the Governor is to act in their discretion.

6

Omit regulation 5 (power to designate persons) (including the heading).

7

Omit regulation 6 (designation criteria) (including the heading).

8

For regulation 8 (notification and publicity where designation power used), substitute—

(8) (1) Subject to paragraph (2), the Governor must— (a) publish a list of designated persons, and (b) keep the list up to date. (2) Where, in accordance with regulation 8 (notification and publicity where designation power used) (as it has effect in the United Kingdom) the Secretary of State is not required to publicise generally a designation, variation or revocation, the Governor must not include in the list under paragraph (1) any details of that designation, variation or revocation. (3) The Governor may publish the list under paragraph (1) in any form the Governor considers appropriate, including by means of a website. (4) For the purpose of this regulation, “designated person” means— (a) any person for the time being designated by the Secretary of State under regulation 5 (power to designate persons) (as it has effect in the United Kingdom), and (b) a person who is a designated person for the purposes of regulations 12 to 16 (asset-freeze etc.) by reason of regulation 10 (designation of persons named by or under UN Security Council Resolutions).

9

In regulation 9 (confidential information in certain cases where designation power used)—

• (a) in the heading, omit “where designation power used”;

• (b) omit paragraph (1);

• (c) in paragraph (2)(a), for “that is to be treated as confidential in accordance with paragraph (1)” substitute “which the Secretary of State has specified is to be treated as confidential under regulation 9(1) (as it has effect in the United Kingdom)”;

• (d) in paragraph (7)—

• (i) for “High Court (in Scotland, the Court of Session)” substitute “Supreme Court of the Territory”;

• (ii) omit “(in Scotland, an interdict)”;

• (e) at the end, insert—

(9) In this regulation, “Supreme Court of the Territory” means— (a) in relation to Anguilla, Montserrat and the Virgin Islands, the High Court of the Eastern Caribbean Supreme Court; (b) in relation to the Cayman Islands, the Grand Court of the Cayman Islands; (c) in relation to the British Antarctic Territory, the British Indian Ocean Territory, the Falkland Islands, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands and the Turks and Caicos Islands, the Supreme Court of that territory; (d) in relation to the Sovereign Base Areas of Akrotiri and Dhekelia in the Island of Cyprus, the Senior Judges’ Court of those Areas.

10

In regulation 10 (designation of persons named by or under UN Security Council Resolutions), omit paragraph (2).

11

For regulation 11 (meaning of “designated person” in Part 3) substitute—

(11) In this Part, a “designated person” means— (a) a person who is designated from time to time by the Secretary of State under regulation 5 (power to designate persons) (as it has effect in the United Kingdom) for the purposes of regulations 12 to 16 (asset-freeze etc.) (as they have effect in the United Kingdom), or (b) a person who is a designated person for the purposes of regulations 12 to 16 by reason of regulation 10 (designation of persons named by or under UN Security Council Resolutions).

12

For regulation 18 (immigration) substitute—