As required by Section 43 of the Sanctions and Anti-Money Laundering Act 2018 (‘the Sanctions Act’), the Minister of State at the Foreign and Commonwealth Office has provided this guidance to assist in the implementation of and compliance with the Burma (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, HM Treasury, the Home Office and 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 Burma (Sanctions) (EU Exit) Regulations 2019 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 Burma (Sanctions) (EU Exit) Regulations 2019
The Regulations impose financial, trade and immigration sanctions in order to encourage the Burma Security Forces (the Burmese Military (Tatmadaw) and the Myanmar Police Force, including the Border Guard Police) to comply with international human rights law and respect for human rights.
In order to achieve their purposes, the Regulations, impose a number of prohibitions and requirements. In order to enforce these, the Regulations establish penalties and offences, which are set out in detail in the corresponding report under section 18 of the Sanctions Act in relation to criminal offences.
The sanctions imposed by these Regulations apply within the territory of the United Kingdom 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 will circumvent any of the prohibitions in these Regulations.
It is also prohibited to undertake activities which enable or facilitate others to contravene the prohibitions in these Regulations.
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. When these Regulations are in force a list of those persons designated under these Regulations will be on GOV.UK.
1.1 Financial sanctions
Asset freeze
The Regulations impose asset freezes on members of the Burma Security Forces who have been identified, and designated under the Sanctions Act, as being responsible for serious human rights violations in Burma. 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 to or for the benefit of designated persons or entities, either directly or indirectly. More information on asset freezescan be found in OFSI guidance.
OFSI is the competent authority for the implementation of financial sanctions in the UK. 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.
1.2 Trade sanctions
The Regulations impose trade prohibitions relating to:
- military goods and technology
- dual-use goods and technology
- goods and technology which might be used for internal repression in Burma
- goods and technology which might be used for the monitoring and interception of telecommunications
- provision of interception and monitoring services to or for the benefit of certain persons connected with Burma (namely persons who work for, on behalf of, or at the direction of the Government of Burma)
- provision of military-related services to or for the benefit of the Tatmadaw
Military goods and technology are specified in Schedule 2 to the Export Control Order 2008. Dual-use goods and technology are specified Annex I to Council Regulation 428/2009 as retained by the European Union (Withdrawal) Act 2018 (‘the retained dual-use regulation’). Internal repression goods and technology are specified in Schedule 2 to the Regulations. Interception and monitoring goods and technology are specified in Schedule 3 to the Regulations. Technical guidance on interception and monitoring is available.
The Department for International Trade (DIT) has overall responsibility for trade sanctions licensing.
For general guidance on export controls and trade sanctions, contact the Export Control Joint Unit:
1.3 Immigration sanctions
The Regulations impose travel bans on members of the Burma Security Forces who have been identified as being responsible for serious human rights violations in Burma. This means that those individuals designated as being subject to immigration sanctions 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.
Part 7 of the Regulations establishes obligations on relevant firms (the definition of which is set out in the Regulations) in the financial sector to report information to HM Treasury about known or suspected designated persons or about persons who have committed an offence under these Regulations.
It also 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).
It also establishes information powers and record-keeping responsibilities in relation to the trade sanctions of the Regulations.
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 enable or facilitate a contravention of, or to circumvent any of the prohibitions in these Regulations and prescribe the mode of trial and penalties that apply to such offences.
2.1 Financial sanctions
Breaches of financial sanctions are a serious criminal offence. Any breach of the main financial prohibitions in the Regulations carries a maximum sentence of 7 years’ imprisonment.
Committing an offence under regulation 41(6) or 45 (information offences in connection with financial sanctions under the Regulations) carries a maximum sentence of 6 months’ imprisonment.
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:
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 prohibitions relating to the trade sanctions contained in these Regulations carries a maximum sentence of 10 years’ imprisonment. Any breach of the licensing provisions carries a maximum sentence of 2 years’ imprisonment.
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, 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?
Licences and exception provisions are contained in Part 6 of these Regulations.
3.1 Financial sanctions
Exceptions
The Regulations set out exceptions to some sanctions prohibitions which apply within certain defined circumstances. An exception applies automatically, and does not require you to obtain a licence from OFSI. These Regulations establish exceptions including for the crediting of a frozen account, providing that any such interest or other earnings are frozen in accordance with the relevant legislation underpinning the asset freeze.
If you are unsure whether an exemption applies in your circumstances, you are advised to seek independent legal advice.
Licensing
Where a designated person’s assets have been frozen, the person may apply for a licence from OFSI in order to be able to utilise their funds or economic resources (non-monetary assets, such as property or vehicles). Schedule 4 of these Regulations set out under which circumstances, or for which activities, OFSI may grant a licence. These are:
- basic needs
- legal services
- maintenance of frozen funds and economic resources
- extraordinary expenses
- pre-existing judicial decisions
- diplomatic missions
- extraordinary situations
- prior obligations
Further information on exemptions and licensing grounds can be found in OFSI’s guidance.
Information on licence applications and the relevant form can be found on OFSI’s GOV.UK webpage.
3.2 Trade sanctions
Licences may also be issued for certain trade activities that would otherwise be prohibited by the Regulations. The Department for International Trade (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 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 purposes 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 under part 6 of these Regulations, the following licensing grounds will be considered.
| Prohibition description | Prohibition reference | Grounds for granting licences to waive this prohibition |
|---|
| Prohibitions on the export, supply and delivery, making available, and transfer of military goods and technology. | Regulations 22 to 25 | A licence may be granted for the export, supply and delivery, making available or transfer of non-lethal military goods or technology if the goods or technology are intended solely for humanitarian or protective use. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of non-lethal military goods or technology if the goods or technology are intended solely for UK Government or UN institution-building programmes or crisis management operations. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of de-mining goods or technology if the goods or technology are for use in de-mining operations. |
| Prohibitions on the provision of technical assistance, financial services and funds relating to military goods and technology. | Regulations 26 and 27 | A licence may be granted for the provision of technical assistance, financial services or funds related to non-lethal military goods or technology if the technical assistance, financial services or funds relate to goods or technology which are intended solely for humanitarian or protective use. |
| | | A licence may be granted for the provision of technical assistance, financial services or funds related to military goods or technology if the technical assistance, financial services or funds relate to goods or technology which are intended solely for UK Government or UN institution-building programmes or crisis management operations. |
| | | A licence may be granted for the provision of technical assistance, financial services or funds related to de-mining goods or technology if the technical assistance, financial services or funds relate to goods or technology which are for use in de-mining operations. |
| Prohibitions on the export, supply and delivery, making available, and transfer of dual-use goods and technology. | Regulations 22 to 25 | Unless a relevant licensing ground below applies, a licence shall not be granted for the export, supply and delivery, making available or transfer of dual-use goods or technology if the Secretary of State has reasonable grounds to believe that the goods or technology may, in their entirety or in part, be intended for military use or a military end-user. This includes in particular any use by the Tatmadaw, any other Burmese military end-users, or the Border Guard Police. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of dual-use goods or technology if the goods or technology are intended solely for humanitarian or protective use. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of dual-use goods or technology if the goods or technology are intended solely for UK Government or UN institution-building programmes or crisis management operations. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of dual-use goods or technology if it relates to the execution of contracts concluded before 27 April 2018 or ancillary contracts necessary for the execution of such contracts. |
| Prohibitions on the provision of technical assistance, financial services and funds relating to dual-use goods and technology. | Regulations 26 and 27 | Unless a relevant licensing ground below applies, a licence shall not be granted for the provision of technical or financial assistance related to dual-use goods or technology if the Secretary of State has reasonable grounds to believe that the technical assistance, financial services or funds relate to goods or technology which may, in their entirety or in part, be intended for military use or a military end-user. This includes in particular any use by the Tatmadaw, any other Burmese military end-users, or the Border Guard Police. |
| | | A licence may be granted for the provision of technical assistance, financial services or funds related to dual-use goods or technology if the technical assistance, financial services or funds relate to goods and technology which are intended solely for humanitarian or protective use. |
| | | A licence may be granted for the provision of technical assistance, financial services and funds related to dual-use goods or technology if the technical assistance, financial services or funds relate to goods or technology which are intended solely for UK Government or UN institution-building programmes or crisis management operations. |
| | | A licence may be granted for the provision of technical assistance, financial services or funds related to de-mining goods or technology if the technical assistance, financial services or funds relate to goods or technology for use in de-mining operations. |
| | | A licence may be granted for the provision of technical assistance, financial services or funds related to dual-use goods or technology if the technical assistance, financial services or funds relate to the execution of contracts concluded before 27 April 2018 or ancillary contracts necessary for the execution of such contracts. |
| Prohibitions on the export, supply and delivery, making available, and transfer of goods and technology which might be used for internal repression. | Regulations 22 to 25 | A licence may be granted for the export, supply and delivery, making available or transfer of goods or technology that might be used for internal repression if the goods or technology are intended solely for humanitarian or protective use. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of goods or technology that might be used for internal repression if the goods or technology are intended solely for UK Government or UN institution-building programmes or crisis management operations. |
| | | A licence may be granted for the export, supply and delivery, making available or transfer of de-mining goods or technology if the goods or technology are for use in de-mining operations. |
| Prohibitions on the provision of technical assistance, financial services and funds relating to goods and technology which might be used for internal repression. | Regulations 26 and 27 | A licence may be granted for the provision of technical assistance, financial services or funds related to goods or technology that might be used for internal repression if the technical assistance, financial services or funds relate to goods or technology which are intended solely for UK Government or UN institution-building programmes or crisis management operations. |
| | | A licence may be granted for the provision of technical assistance, financial services or funds related to de-mining goods or technology if the technical assistance, financial services or funds relate to goods or technology for use in de-mining operations. |
| Prohibitions on the export, supply and delivery, making available, and transfer of goods and technology might be used for the monitoring and interception of telecommunications. | Regulations 22 to 25 | A licence shall not be granted for the export, supply and delivery, making available or transfer of interception and monitoring goods or technology if the Secretary of State has reasonable grounds to determine that the goods or technology would be used for internal repression by the Government of Burma. |
| Prohibitions on the provision of technical assistance, financial services and funds relating to goods and technology might be used for the monitoring and interception of telecommunications. | Regulations 26 and 27 | A licence shall not be granted for the provision of technical assistance, financial services or funds related to interception and monitoring goods or technology if the technical assistance, financial services or funds relate to goods or technology that the Secretary of State has reasonable grounds to determine would be used for internal repression by the Government of Burma. |
| Provision of interception and monitoring services. | Regulation 29 | A licence shall not be granted for the provision of interception and monitoring services if the Secretary of State has reasonable grounds to determine that the services would be used for internal repression by the Government of Burma. |
The items subject to prohibitions under the trade sanctions in these Regulations include those found in Schedule 2 to the Export Control Order 2008 (military goods and technology), and those found in Annex I to the retained dual-use regulation (dual-use goods and technology), as well as those found in Schedule 2 (internal repression goods) and Schedule 3 (interception and monitoring equipment) to these Regulations. There are circumstances in which items in these Schedules are permitted, such as for example when a person is accompanied by body armour or a helmet intended for their own protection. Please check the relevant legislation as applicable.
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.
3.3 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 will also need a licence which is valid under that legislation.
The way this will work in practice is that we will consider an application for a licence which relates to military goods and technology under these Regulations as a request for a licence under the Export Control Order 2008 as well. Similarly, if you apply for a licence relating to military goods and technology under the Export Control Order 2008, where those goods or that technology also fall within the scope of these Regulations, we will also consider that application as being an application for a licence under these Regulations. This means that only a single licence application is required.
However, the application will be considered against the relevant licensing criteria in the relevant pieces of legislation. If the application is compatible with both pieces of legislation, a licence will be granted which will be valid under both the Export Control Order 2008 and these Regulations.
Dual-Use goods and technology
Please note that the export and trade in dual-use goods and technology are also controlled under the retained dual-use regulation. Authorisations under those regulations are granted by the Secretary of State for International Trade under licensing powers in the Export Control Order 2008.
This means that all licence applications relating to dual-use goods and technology will also need to be considered against the Strategic Export Licensing Criteria.
As explained above in relation to military goods and technology only a single licence application will be required in relation to dual-use goods and technology, which falls within the scope of both these Regulations and the retained dual-use regulation. If the application is compatible with both criteria, a licence will be granted which will be valid under the retained dual-use regulation and the Export Control Order 2008 as well as these Regulations.
3.4 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.
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.
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