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This publication is available at https://www.gov.uk/government/publications/the-democratic-republic-of-the-congo-guidance/the-democractic-republic-of-the-congo-sanctions-guidance
As required by Section 43 of the Sanctions and Anti-Money Laundering Act 2018 (‘the Sanctions Act’), the Secretary of State for Foreign and Commonwealth Affairs has provided this guidance to assist in the implementation of and compliance with the Democratic Republic of the Congo (Sanctions) (EU Exit) Regulations 2019 (the ‘Regulations’).
As required by the Sanctions Act, this document contains guidance on the prohibitions and requirements imposed by the Regulations. It additionally provides guidance on best practice for complying with the prohibitions and requirements; the enforcement of them; and circumstances where they do not apply.
This document is intended to be read alongside more detailed sanctions guidance published by departments including the Department for International Trade (DIT), Home Office and HM Treasury, through the Office of Financial Sanctions Implementation (OFSI). This document contains links to those key sources of sanctions guidance, which will be regularly maintained and updated on GOV.UK. It is designed to give an overview of the prohibitions and requirements in the Regulations and, where appropriate, direct readers to further detailed guidance. This document is current on the date of publication.
1. Prohibitions and requirements imposed by the Regulations
The Regulations impose financial, trade and immigration sanctions for the purposes of giving effect to the United Kingdom’s (UK) obligations under United Nations Security Council Resolution (UNSCR) 1807 and the additional statutory purposes set out in the Regulations. As a whole, this sanctions regime is aimed at promoting the resolution of the armed conflict in the DRC, respect for human rights, compliance with international humanitarian law and respect for democracy, the rule of law and good governance in the DRC.
To achieve the stated purposes, the Regulations impose a number of prohibitions and requirements. The Regulations establish penalties and offences. These are set out in detail in the relevant report under Section 18 of the Sanctions Act in relation to criminal offences and the corresponding guidance is in Section 2 (on enforcement) in this document.
The sanctions imposed by these Regulations apply within the territory of the UK and in relation to the conduct of all UK persons wherever they are in the world. UK persons includes British nationals, as well as all bodies incorporated or constituted under the law of any part of the UK. Accordingly, the sanctions imposed by these Regulations apply to all companies established in any part of the UK, and they also apply to branches of UK companies operating overseas.
It is prohibited to intentionally participate in any activities if you know that the object or effect of them is to circumvent the sanctions imposed by these Regulations or to enable or facilitate the contravention of those sanctions. If you are unclear about any aspects of the Regulations, in particular about whether action you are considering taking could contravene these Regulations, you are advised to seek independent legal advice.
Prohibitions and requirements for the financial, trade, and immigration sanctions contained in these Regulations are set out below.
1.1 Designation of persons
The Regulations provide that the Secretary of State may designate persons for the purposes of financial and/or immigration sanctions if they are, or have been, involved in a relevant activity. This involves, for example, having been involved in the commission of serious human rights violations or abuses, violations of international humanitarian law and persons who are, or have, been involved in obstructing a consensual and peaceful solution towards democratic and legitimate elections and processes in the DRC. The Regulations also impose certain trade restrictions in respect of military goods and technology.
When these Regulations are in force a list of those persons designated under them and details of the sanctions in respect of which they have been designated, will be on GOV.UK.
The Regulations also provide that each person for the time being designated by the United Nations Security Council or Sanctions Committee under paragraph 11 of UNSCR 1807 is a designated person for the purposes of the financial sanctions. Persons subject to a travel ban under this resolution are not captured by these Regulations. For further information, please refer to the Immigration Sanctions section below.
1.2 Financial sanctions
The Regulations impose financial sanctions through a targeted asset freeze on designated persons. This involves the freezing of funds and economic resources (non-monetary assets, such as property or vehicles) of designated persons and ensuring that funds and economic resources are not made available directly or indirectly to, or for, the benefit of designated persons.
More information on asset freezes can be found in the OFSI guidance.
OFSI is the authority responsible for implementing the UK’s financial sanctions on behalf of HM Treasury. OFSI helps to ensure that financial sanctions are properly understood, implemented and enforced in the United Kingdom. Further information on how OFSI implements financial sanctions can be found on the OFSI pages of GOV.UK.
1.3 Trade sanctions
The Regulations impose trade prohibitions relating to military goods and technology (as specified in Schedule 2 to the Export Control Order 2008).
It is also prohibited for a person to provide technical assistance, armed personnel, financial services or funds or associated brokering services, where such provision enables or facilitates the conduct of armed hostilities in DRC.
There are circumstances (set out in the relevant lists of controlled items) in which certain items are not controlled, for example when body armour or a helmet is accompanying a person for that person’s own protection. Please check the relevant lists as applicable.
DIT has overall responsibility for trade sanctions licensing. For general guidance on export controls and trade sanctions, contact the Export Control Joint Unit:
Helpline: +44 (0) 20 7215 4594
1.4 Immigration sanctions
The effect of these Regulations is to impose a travel ban on persons who are designated by the Secretary of State for the purposes of being made subject to immigration sanctions under the Sanctions Act. Such persons are excluded persons for the purposes of section 8B of the Immigration Act 1971, as are persons designated by the UN Security Council or its Sanctions Committee under UNSCR 1807 for travel ban purposes.
This means that those individuals will be refused leave to enter or remain in the UK. Any applications they make for a visa to travel to the UK, including for transit purposes, will be refused. A foreign national who is subject to a travel ban under these Regulations, and is currently in the UK, will have their permission to stay in the UK cancelled and steps will be taken to remove them from the UK.
If you are the subject of an immigration sanction and try to travel to the UK, carriers are required to deny you boarding.
Further information on how the Home Office deals with those who are subject to a travel ban can be found on the Home Office pages of GOV.UK here.
1.5 Information and record keeping
Part 7 of the Regulations places obligations on relevant firms (the definition of which is set out in the Regulations) to report information to HM Treasury about known or suspected designated persons or about persons who have committed an offence under these Regulations.
Part 7 grants powers to HM Treasury to request information from a designated person, including powers to request the production of documents. It also establishes offences for failing to comply with these requests (including providing false information).
Part 7 also establishes information powers and record-keeping responsibilities in relation to the trade sanctions contained in these Regulations. It provides for offences for failing to comply with any of those requirements or intentionally obstructing an official in the exercise of those powers.
If you have obligations or responsibilities under Part 7 of these Regulations, it is important that you familiarise yourself with them. If you are unclear of your obligations or responsibilities, you are advised to seek independent legal advice.
2. How will these sanctions measures be enforced?
The Regulations make it a criminal offence to contravene the trade and financial sanctions, as well as to enable or facilitate a contravention of, or to circumvent any of the prohibitions in these Regulations. They also prescribe the mode of trial and penalties that apply to such offences. In addition to the below, further details on offences and penalties can be found in the relevant section 18 report accompanying these Regulations.
2.1 Financial sanctions
Breaches of financial sanctions are a serious criminal offence. Any breach of the main financial prohibitions in the Regulations is an offence that is triable either way and carries a maximum sentence of seven years’ imprisonment or a fine (or both).
Committing an offence under regulations 39(6) or 43 (information offences in connection with financial sanctions under the Regulations) is summary only and carries a maximum sentence of 6 months’ imprisonment or a fine (or both).
OFSI is responsible for monitoring compliance with financial sanctions and for assessing suspected breaches. It also has the power to impose monetary penalties for breaches of financial sanctions and to refer cases to law enforcement agencies for investigation and potential prosecution.
OFSI works with other parts of government, supervisory bodies and regulators to consider all cases reported to it, sharing relevant information accordingly.
If you find out that a person or organisation you are dealing with is subject to the financial sanctions detailed in the Regulations, you must immediately:
- stop dealing with them
- freeze any assets you are holding for them
- inform OFSI as soon as possible by either emailing: firstname.lastname@example.org or by calling their general enquiries line: +44 (0)20 7270 5454
More detailed information on OFSI’s approach to compliance and enforcement can be found in Chapter 7 of OFSI’s guidance.
2.2 Trade sanctions
Any breach of the trade sanctions prohibitions in these Regulations is triable either way and carries a maximum sentence of 10 years’ imprisonment or a fine (or both). Any breach of the trade licensing provisions is also triable either way carries a maximum sentence of 2 years’ imprisonment or a fine (or both).
HM Revenue and Customs (HMRC) is responsible for enforcing the licensing restrictions and investigating suspected offences.
If you discover that you have breached any of the trade prohibitions or licensing provisions, you should report the irregularity to HMRC (sometimes known as ‘voluntary disclosure’) as soon as possible. If the irregularity was found on an Export Control Joint Unit compliance audit in relation to a general licence, the compliance inspector will have informed HMRC and you are strongly advised to do the same. Guidance is available on how to make a voluntary disclosure.
3. Are there circumstances when I can get an authorisation or licence for a sanctioned activity?
Licensing and exception provisions are contained in Part 6 of these Regulations.
The Regulations set out exceptions to some of the sanctions prohibitions which apply within certain defined circumstances. An exception applies automatically, and does not require you to obtain a licence.
These Regulations establish exceptions relating to financial sanctions including for the crediting of a frozen account, providing that any such interest or other earnings are frozen in accordance with the legislation underpinning the asset freeze. There is an exception for when funds are transferred to a relevant institution for crediting to an account held or controlled by a designated person in discharge (or partial discharge) of an obligation which arose before that person became a designated person.
The Regulations also include an exception in relation to any prohibition or requirement imposed by these Regulations for acts done for the purposes of national security or prevention of serious crime. These exceptions do not apply to all prohibitions. If you are unsure whether an exception applies in your circumstances, you are advised to seek independent legal advice.
3.2 Licensing for financial services
Where a person is designated for the purposes of the financial sanctions contained in these Regulations, the person or a representative (on their behalf) may apply for a licence from OFSI to use their funds or economic resources (non-monetary assets, such as property or vehicles). Schedule 2 to the Regulations sets out under which circumstances, or for which activities, OFSI may grant an individual licence. In summary these are:
- basic needs
- reasonable legal fees or reasonable expenses associated with the provision of legal services
- reasonable fees for the routine holding or maintenance of frozen funds and economic resources
- extraordinary expenses
- pre-existing judicial decisions
- prior obligations
- diplomatic missions (relating to non-UN designated persons only)
- extraordinary situations (relating to non-UN designated persons only)
OFSI may need to notify, or in some cases seek approval from the relevant United Nations Sanctions Committee before issuing a licence. These requirements are set out in the relevant UN Security Council Resolutions. These requirements will lengthen the processing time for such licence applications and may in some cases prevent a licence from being issued.
Further information on exceptions and the licensing grounds set out above can be found in OFSI’s guidance.
Information on licence applications can be found on OFSI’s GOV.UK licensing webpage.
3.3 Trade sanctions
Licences may also be issued for certain trade activities that would otherwise be prohibited by the Regulations. DIT has overall responsibility for trade sanctions licensing. The Secretary of State for International Trade is ultimately responsible for decisions to grant or refuse a trade sanctions licence in any individual case.
The Export Control Joint Unit sits within DIT and is responsible for administering the licensing provisions on behalf of the Secretary of State for all trade sanctions, except those relating to imports which are administered by the Import Licensing Branch and which are not relevant for the purpose of these Regulations. In exercising these powers, DIT seeks and considers advice from other government departments.
In making decisions on whether to grant a licence to permit something which would otherwise be prohibited under Part 6 of these Regulations, the Secretary of State will consider each application on a case-by-case basis to determine whether granting a licence would be consistent with the stated purposes of the sanctions regime and any UN or other relevant international law obligations.
For some prohibitions there are some specific activities which DIT considers are likely to be consistent with the aims of the sanctions. These are set out in the table below. If you think that your proposed activity falls within one of these specific descriptions you should make this clear and explain why you believe this to be the case in your application for a licence.
Some of these grounds include requirements relating to the UN Security Council Sanctions Committee on the Democratic Republic of the Congo (‘UNSC’):
- where the Secretary of State is required to give the UNSC notice of a licence granted under this sanctions regime, the Secretary of State will first determine whether granting a licence would be consistent with the purposes set out in the Regulation. If the Secretary of State determines that granting a licence would be consistent with those purposes and go on to grant a licence, the UK (via the FCO) will notify the UNSC
- where approval from the UNSC is required in order to grant a licence, the Secretary of State will first determine whether granting the licence would be consistent with the purposes set out in the Regulation. If the Secretary of State determines that granting a licence would be consistent with those purposes, the UK (via the FCO) will submit the necessary information to the UNSC to seek the approval of the committee. The Secretary of State will only grant a licence when confirmation of the Committee’s approval has been received
- you should not assume that a licence will be granted or engage in any activities prohibited by trade sanctions until your licence has been granted
|Prohibition description||Prohibition reference||Considerations for licensing|
|Prohibitions on the export, making available, transfer, supply or delivery of military goods or technology.||21 - 24||A licence may be granted for the export, making available, transfer, supply or delivery of military goods or technology if the goods or technology are intended solely for the support of, or use by, the United Nations Organisation Stabilisation Mission in the DRC (MONUSCO).|
|A licence may be granted for the export, making available, transfer, supply or delivery of non-lethal military goods or technology if the goods or technology are intended solely for humanitarian assistance activities or for protective use. This is subject to advance Sanctions Committee notification.|
|A licence may be granted for the export, making available, transfer, supply or delivery of military goods or technology if the goods or technology are intended solely for the support of or use by the African Union- Regional Task Force. This is subject to advance Sanctions Committee notification.|
|A licence may be granted for the export, making available, transfer, supply or delivery of military goods or technology in circumstances other than those above. This is subject to Sanctions Committee approval.|
|Prohibitions on the provision of technical assistance, brokering services, financial services or funds relating to military goods or technology.||25 - 27||A licence may be granted for the provision of technical assistance, brokering services, financial services or funds relating to military goods or technology if the technical assistance, brokering services, financial services or funds relate to military goods or technology which are intended solely for the support of, or use by, the United Nations Organisation Stabilisation Mission in the DRC (MONUSCO).|
|A licence may be granted if the technical assistance, brokering services, financial services or funds relating to military goods or technology if the technical assistance, brokering services, financial services or funds relate to military goods or technology which are intended solely for the support of or use by the African Union- Regional Task Force.|
|A licence may be granted for the provision of technical assistance, brokering services, financial services or funds relating to military goods or technology if the technical assistance, brokering services, financial services or funds relate to non-lethal military goods and technology intended solely for humanitarian assistance activities or for protective use. This is subject to advance Sanctions Committee notification.|
|A licence may be granted for the provision of technical assistance, brokering services, financial services or funds related to military goods and technology in circumstances other than those above. This is subject to Sanctions Committee approval.|
|Prohibitions on the provision of services enabling or facilitating armed hostilities||28||A licence may be granted for the provision of assistance or personnel. This is subject to Sanctions Committee approval.|
The UN Security Council has set out in paragraphs 2 and 3 of resolution 1807 a number of derogations in relation to the UN sanctions measures as a whole, some of which may be relevant to the provision of funds or services enabling or facilitating the conduct of armed hostilities. If you think that your proposed activity would otherwise be prohibited by the prohibitions set out in regulation 28 of these Regulations, but meets the criteria set out in paragraphs 2 and 3 of resolution 1807 and is consistent with the aims of the sanctions, then you should make this clear, and explain why you believe this to be the case, in your application for a licence. Where relevant, the Secretary of State may notify or seek the approval of the UNSC, when considering your application for a licence.
When you export goods, you may need to submit an electronic export declaration via the National Export System (NES), part of Her Majesty’s Revenue and Customs’ (HMRC) Customs Handling of Import and Export Freight (CHIEF) system. Guidance is available on how to make an export declaration.
3.4 Overlap with strategic export licensing:
Military goods and technology
Please note that the export and trade in military goods and technology are also controlled under the Export Control Order 2008 and so you may also need a licence which is valid under that legislation. This means that all licence applications relating to military goods and technology will also need to be considered against the strategic export licensing criteria. A licence under these Regulations is unlikely to be granted if a licence is refused for the same activity under the Export Control Order 2008.
The way this will work in practice is that we will consider an application for a licence which relates to activities that are licensable under both these Regulations and the Export Control Order 2008 as an application under both pieces of legislation. This means that only a single licence application is required.
The application will be considered against the relevant licensing criteria. If a licence is granted it will be valid under both the Export Control Order 2008 and these Regulations.
Overlap between trade sanctions and financial sanctions
3.5 Directions in respect of immigration sanctions
If you are subject to immigration sanctions the Home Office may direct, on a case by case basis, that the sanction does not apply in particular circumstances, such as for travel to, or through, the UK for a UN sponsored meeting. You can check how to apply for a UK visa, and find further information about travelling to the UK on GOV.UK.
3.6 Further information
Sign up to receive Notices to Exporters for updates on trade sanctions.
To receive an email alerting you to any changes to the consolidated list of financial sanctions targets, you can subscribe to OFSI’s e-alert.