The Libya (Sanctions) (EU Exit) Regulations 2020

Made: 29th December 2020

Laid before Parliament: 4th January 2021

Coming into force in accordance with regulation 1(2) and (3)

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, 6, 7(6)(a) and (7), 8, 9(2), 10(2)(a) and (c), (3) and (4), 11, 13, 15(2)(a) and (b), (3), (4)(b), (5) and (6), 16, 17, 19, 20, 21(1), 54(1) and (2), and 62(4) to (6) of, and paragraphs 2(b), 3(a) and (b), 4(b) and (c), 5(a)(ii), (b), (c) and (d), 6(a)(ii) and (b), 7(a)(ii) and (b), 10(b), 11(a)(ii), 13(b), (h), (i), (k), (l), (m), (n) and (w), 14(a), (f) and (k), 15(a), (c) and (d), 17, 19 to 23, 26 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) 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 Libya (Sanctions) (EU Exit) Regulations 2020.

• (2) The following provisions come into force on 30th December 2020—

• (a) this regulation;

• (b) regulation 2 (interpretation);

• (c) regulation 4 (purposes);

• (d) regulation 5 (power to designate persons);

• (e) regulation 6 (criteria for designating a person);

• (f) regulation 7 (meaning of “owned or controlled directly or indirectly”);

• (g) regulation 8 (notification and publicity where designation power used);

• (h) regulation 10 (designation of persons named by or under UN Security Council Resolutions);

• (i) regulation 32 (interpretation of Part 5);

• (j) Schedule 1 (rules for interpretation of regulation 7(2)).

• (3) All other provisions come into force on IP completion day .

Interpretation

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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);

• “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 24 of resolution 1970;

• “conduct” includes acts and omissions;

• “director disqualification licence” means a licence under regulation 48A;

• “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 Libya Regulation” means Council Regulation (EU) 2016/44 of 18 January 2016 concerning restrictive measures in view of the situation in Libya and repealing Regulation (EU) No 204/2011 , as it has effect in EU law;

• a “non-UN designated person” means a person—who is designated under regulation 5 (power to designate persons) for the purposes of regulations 12 to 16 (asset-freeze etc.), andwhose designation (in the opinion of the Secretary of State) is not required by paragraph 17 of resolution 1970 (read in accordance with regulation 4(4));

• “port licence” means a licence under regulation 50;

• “resolution 1970” means resolution 1970 (2011) adopted by the Security Council on 26 February 2011;

• “resolution 1973” means resolution 1973 (2011) adopted by the Security Council on 17 March 2011;

• “resolution 2009” means resolution 2009 (2011) adopted by the Security Council on 16 September 2011;

• “resolution 2095” means resolution 2095 (2013) adopted by the Security Council on 14 March 2013;

• “resolution 2146” means resolution 2146 (2014) adopted by the Security Council on 19 March 2014;

• “resolution 2174” means resolution 2174 (2014) adopted by the Security Council on 27 August 2014;

• “resolution 2213” means resolution 2213 (2015) adopted by the Security Council on 27 March 2015;

• “resolution 2362” means resolution 2362 (2017 adopted by the Security Council on 29 June 2017;

• “resolution 2441” means resolution 2441 (2018) adopted by the Security Council on 5 November 2018;

• “trade licence” means a licence under regulation 49;

• “Treasury licence” means a licence under regulation 48(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 or the prohibition under regulation 42(2)(b) (overflight of aircraft) 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),

• (d) Part 6 (UN designated ships), except for regulation 36 (port access or entry for UN designated ships), or

• (e) a condition of a Treasury licence, a trade licence or a port 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 9 (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, a trade licence or a port 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 respect for human rights in Libya,

• (b) promoting the peace, stability and security of Libya,

• (c) promoting the successful completion of Libya's transition to a democratic, independent and united country, and

• (d) preventing migrant smuggling and human trafficking taking place from Libya,

otherwise than by compliance with the relevant UN obligations.

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

• (a) the obligation that the United Kingdom has by virtue of paragraph 17 of resolution 1970 (asset-freeze etc.) 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 17 of resolution 1970 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 17 of resolution 1970;

• (c) the obligations that the United Kingdom has by virtue of paragraphs 9, 10 and 12 of resolution 1970 (arms embargo etc.) as read with paragraph 13 of resolution 2009, paragraphs 9 and 10 of resolution 2095 and paragraph 8 of resolution 2174;

• (d) the obligation that the United Kingdom has by virtue of paragraph 18 of resolution 1973 (in relation to the landing, taking off and overflying of certain aircraft);

• (e) the obligations that the United Kingdom has by virtue of paragraph 10 of resolution 2146 (in relation to ships for the time being designated by the Committee for the purposes of that paragraph) .

• (4) In paragraph (3)(a) and (b)—

• (a) a reference to persons named by the Security Council or the Committee for the purposes of paragraph 17 of resolution 1970 includes persons named by virtue of paragraph 19 of resolution 1973;

• (b) a reference to the obligations the United Kingdom has by virtue of paragraph 17 of resolution 1970 is to that provision as read with—

• (i) paragraph 23 of resolution 1973,

• (ii) paragraph 15 of resolution 2009,

• (iii) paragraph 4 of resolution 2174,

• (iv) paragraph 11 of resolution 2213,

• (v) paragraph 11 of resolution 2362, and

• (vi) paragraph 11 of resolution 2441.

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 (asset-freeze etc.);

• (aa) regulation 21A (director disqualification sanctions);

• (b) regulation 22 (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 by name) an “involved person” means a person who—

• (a) is or has been involved in—

• (i) the commission of a serious human rights violation or abuse in Libya;

• (ii) the commission of a violation of international humanitarian law in Libya, including in particular attacking civilian populations or facilities in violation of international law;

• (iii) activities carried out on behalf of the former regime of Muammar Qadhafi implementing or connected to the repressive policies of that regime;

• (iv) any other activity which threatens the peace, stability and security of Libya or undermines its transition to a democratic, peaceful and independent country, including in particular—

• (aa) attacking a port, airport, or other infrastructure, a foreign mission, or United Nations personnel, in Libya;

• (bb) illicitly exploiting oil or any other natural resources in Libya for the purposes of providing support to armed groups or criminal networks;

• (cc) threatening or coercing the Libyan National Oil Company or Libyan state financial institutions;

• (dd) misappropriating Libyan state funds, or taking action that may lead to such misappropriation,

• (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) Any reference in this regulation to being involved in an activity set out in paragraph (2)(a) 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 Libya 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) being involved in the supply to Libya of goods or technology which could contribute to any such activity, or in providing financial services relating to such supply;

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

• (4) For the purposes of this regulation, being “involved in” misappropriating Libyan state funds includes owning or controlling Libyan state funds which were misappropriated during the former regime of Muammar Qadhafi.

• (5) In this regulation—

• “relevant provision” means—any provision of Part 3 (Finance), Part 5 (Trade), Part 6 (Trade, transport and finance measures related to UN designated ships), or Part 7 (Aircraft);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 or Parts 5 to 7;any provision of resolution 1970, resolution 1973 or resolution 2146;

• “restricted goods” and “restricted technology” have the meanings given by Part 5.

• (6) 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.

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 (power to designate persons), 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) Where the Secretary of State considers that a person's designation is required by paragraph 17 of resolution 1970, the statement of reasons must include a statement that in the Secretary of State's opinion the designation is required by that paragraph.

• (6) Matters that would otherwise be required by paragraph (4) or (5) 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.

• (7) 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.

• (8) 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;