Guidance for information note: operating within counter-terrorism legislation, counter-terrorism sanctions and export control by UK Government

This “for information note” has been prepared primarily for International Non-Government Organisations (INGOs) but it may apply to other sectors, particularly the financial sector. It provides information on counter-terrorism legislation including the counter-terrorism elements of sanctions and export control that may be of relevance to INGOs delivering development and humanitarian assistance in high-risk jurisdictions.

There are FAQs at the end of this document. Her Majesty’s Government (HMG) has actively consulted with UK-based INGOs through the Home Office chaired Tri-Sector Working Group. HMG is committed to ensuring that counter-terrorism legislation, including counter-terrorism sanctions and export control legislation is applied in a clear and effective manner that is proportionate to risk. This information note is intended to support compliance with the legislative framework, without compromising other HMG priorities or unnecessarily impeding legitimate humanitarian activities overseas. In this updated “for information note” a number of changes have been made to provide for new requirements and updated policies. This includes revisions to the sanctions and export control sections of the document, following the introduction of the UK’s new sanctions framework under the Sanctions and Anti-Money Laundering Act 2018 (SAMLA).

This document now also includes a section on the ‘Designated Area Offence’ following the introduction of the offence in the Counter-Terrorism and Border Security Act 2019. Implementation and enforcement of counter-terrorism, sanctions and export control legislation, is owned and managed by a variety of Government and public agencies:

• The Home Office is responsible for most counter-terrorism legislation and policy. Ownership includes Acts such as the Terrorism Act 2000 (TACT 2000), which contains the majority of terrorism offences, including those relating to proscription and terrorist financing.
• The Foreign Commonwealth and Development Office (FCDO) is responsible for the UK’s sanctions policy and efforts to counter terrorism globally. The FCDO is also responsible for administering and managing international humanitarian and development assistance and is the policy holder for the no concessions policy (Kidnap for Ransom).
• Her Majesty’s Treasury (HMT), through its Office of Financial Sanctions Implementation (OFSI), is responsible for the implementation and enforcement of financial sanctions in the UK as well as domestic counter-terrorism sanctions legislation. This includes the assessment of financial sanctions licence applications and suspected breach report forms.
• The Department for International Trade (DIT) is responsible for the UK’s trade policy. This includes ownership of export controls, export licensing and implementation of trade sanctions.
• The Charity Commission for England and Wales (CCEW) is an independent, non-ministerial Government department that regulates charities in England and Wales and maintains the public Register of Charities. It supports charities, including those that operate in high-risk jurisdictions, by providing guidance on legal requirements, emerging risks and good practice with the aim of supporting charities to protect against abuse, including terrorism. The CCEW has a range of enforcement powers to address abuse in charities.
• Operational partners such as the police and the National Crime Agency (NCA) are responsible for investigating suspected offences under counter-terrorism legislation. The UK Financial Intelligence Unit (UKFIU) within the NCA is responsible for receiving and disseminating suspicious activity reports (SARs), including those relating to Defence Against Terrorist Finance and the Proceeds of Crime Act 2002. UKFIU does not have an investigative function, any investigations are carried out by the police and are independent of the Government.
• The Crown Prosecution Service (CPS) prosecutes criminal cases that have been investigated by the police and other investigative organisations in England and Wales, in accordance with the Code for Crown Prosecutors. The CPS makes its decisions independently of the police and the Government.

Further information on the individual remits of departments and agencies, including contact information, can be found throughout this note and on GOV.UK.

Sanctions

Sanctions measures include financial sanctions (such as asset freezes), immigration sanctions (travel bans), trade sanctions (including arms embargoes and dual-use goods restrictions), as well as aircraft and shipping sanctions (including de-registration requirements and controls on the movement of aircraft and ships). Sanctions are an important foreign policy and national security tool. The UK generally uses sanctions to: i) coerce designated individuals or entities, or a regime, into changing their behaviour (or aspects of it) by increasing the cost on them to such an extent that they decide to cease the offending behaviour; ii) constrain a target by denying them access to key resources needed to continue their offending behaviour, including the financing of terrorism or nuclear proliferation; and/or iii) signal disapproval, stigmatising and potentially isolating a regime or individual, or as a way of sending broader political messages nationally or internationally. The Sanctions and Anti-Money Laundering Act 2018 (SAMLA) provides the legal framework for the UK to impose, update and lift sanctions. Following the end of the EU Exit Transition Period, the UK is pursuing an independent sanctions policy driven by our foreign policy and national security objectives. At the end of the EU Exit Transition Period, EU sanctions regulations ceased to apply in the UK. The UK sanctions regimes that went live on 31 December 2020 under SAMLA have substantially the same policy effect as the EU regimes that were in force at the end of the Transition Period. The vast majority of designations under EU regimes were replicated under UK law. All designations made under SAMLA are contained in the UK Sanctions List. The UK Sanctions List is a comprehensive list maintained by the FCDO of individuals, entities, or ships designated under SAMLA regulations. The restrictions applied to such persons contained in this list include financial, immigration, trade or transport sanctions. The FCDO’s UK Sanctions List only contains those designated under the SAMLA and does not include other sources, such as the Anti-Terrorism, Crime and Security Act 2001 (ATCSA). OFSI’s Consolidated List of Financial Sanctions reflects only financial sanctions designations made in the UK, both under SAMLA and ATCSA. It does not contain designations made under trade, transport or immigration legislation. The UK’s main domestic asset-freezing legislation, the Terrorist Asset-Freezing etc Act 2010, was repealed by SAMLA. It was replaced by a domestic counter-terrorism regime through the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019, which is managed by HMT; and by an international counter-terrorism regime through the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019. For more information on the UK’s domestic counter-terrorism regime visit UK sanctions relating to domestic counter-terrorism. For more information on the UK’s international counter-terrorism sanctions regime visit UK sanctions relating to international counter-terrorism. The ISIL (Da’esh) and Al-Qaida sanctions regime is intended to give effect to the UK’s obligations under UN Security Council resolution 2368 by imposing measures against those named on the UN’s ISIL (Da’esh) and Al-Qaida Sanctions List. It is put in place through the ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019, which replaced, with substantially the same effect, relevant existing EU legislation and related UK legislation at the end of the Transition Period. For more information on the ISIL (Da’esh) and Al-Qaida sanctions regime visit UK sanctions relating to ISIL (Da’esh) and Al-Qaida.

Is there guidance as to what forms of transactions are prohibited under financial sanctions and how these apply to INGOs?

A. OFSI has produced general guidance on financial sanctions, as well as guidance for charities, INGOs and others, which is especially relevant to those operating in high-risk jurisdictions and areas where financial sanctions are in force. OFSI’s guidance products are available at Financial sanctions: guidance.

• OFSI’s general guidance outlines how to effectively implement financial sanctions and licensing and compliance requirements
• OFSI’s charity sector guidance answers questions relevant to charities and INGOs operating in areas where sanctions are in force

Where can I find out more information about compliance with sanction regimes and licensing requirements under these regimes?

A. There is guidance available on how to comply with sanctions regimes and licensing requirements at:

• UK Sanctions overview
• UK Sanctions Regimes guidance
• OFSI’s licensing application page
• OFSI’s suspected breach reporting page
• Charities and Terrorism, Chapter 1 of the CCEW’s Compliance Toolkit
• Financial Crime Thematic Reviews – Financial Conduct Authority (FCA) Handbook Chapter 8 “Financial Services Firms approach to UK financial sanctions”
• GOV.UK outlining the licensing policy which applies to designated persons under the counter-terrorism sanctions regimes in force in the UK: Counter-Terrorism Licensing Policy
• Guidance on specific sanctions regimes: UK sanctions regimes

Designated Entities (Financial Sanctions)

What is a designated entity?

A. A designated entity is an individual or organisation designated under one of the UK’s sanctions regimes. For example, a group may be designated under one of the three counter-terrorism sanctions regimes: the domestic regime (the Counter-Terrorism (Sanctions) (EU Exit) Regulations 2019), the international counter-terrorism regime (the Counter-Terrorism (International Sanctions) (EU Exit) Regulations 2019), and those persons on the UN’s ISIL (Da’esh) and Al-Qaida List (implemented through the ISIL (Da’esh) and Al-Qaida (United Nations Sanctions) (EU Exit) Regulations 2019). Designated terrorist groups, individuals and entities can be found in other sanctions regimes (for example the Al Shabaab terrorist group and individuals associated with this group are designated under the UN Somalia sanctions regime). Full details on UK sanctions regimes are available at GOV.UK: UK sanctions regimes An organisation’s status as a designated entity is separate to its status as a proscribed organisation, this means that a terrorist organisation can be both proscribed and subject to a sanctions designation or have only one of these statuses.

Can I check that I am dealing with a designated entity? And, how do I find out what sanctions’ regimes are in force?

A. OFSI produces a consolidated list of designated entities subject to an asset freeze in the UK. This includes all the individuals and entities designated under financial sanctions and the domestic counter-terrorism sanctions regimes. Please be aware that sanctions are imposed for a number of reasons, and you may encounter individuals and entities designated under regimes that are not related to counter-terrorism. You should always conduct risk assessments for the entirety of the payment chain/activity being carried out, including entities you are directly or indirectly dealing with, prior to initiating a payment.

• OFSI’s consolidated list is available at: Who is subject to financial sanctions in the UK?
• The list of current financial sanctions regimes in force in the UK in which individuals and entities are designated under is available at: Financial sanctions targets by regime

Are all entities designated under United Nations and European Union sanctions regimes automatically listed by the UK?

A. SAMLA provides the legal framework for the UK to impose, update and lift sanctions autonomously and to implement UN sanctions in line with our international obligations. Following the UK’s exit from the European Union (EU), listings under EU regimes are not automatically designated by the UK. EU designations continue to apply within the territory of any EU Member State; to EU nationals in any location; to companies incorporated under the law of a Member State - including branches of EU companies based in third countries including the UK - and on-board aircraft or vessels under Member States’ jurisdiction. The UK sanctions list provides a comprehensive list of individuals and entities designated under UK autonomous and UN sanctions.

Export Controls

There are licensing requirements for the export of strategic items from the UK. These strategic items include: military items, dual-use items (which can have both civil and military purposes), firearms (their component parts, accessories and/or ammunition and related software and technology), and goods that can be used for: torture, capital punishment or cruel and inhuman or degrading treatment or punishment. The Export Control Order 2008 controls the export and trade of these items. You can assess your goods, software and technology against the UK Strategic Export Control Lists to determine whether they are controlled: UK Strategic Export Control Lists. The Goods Checker Tools (OGEL and Goods Checker Tools) can be used to:

• check if the items are controlled; and
• identify the appropriate control entry

If your items are not listed on the UK Strategic Export Control Lists, you may still need a licence under End-User controls. End-use controls can be applied to any non-controlled items or activities, if potentially connected to a WMD programme or if the items are or may be intended for military end-use. Regulations made under SAMLA may also apply to activities involving military or dual-use items and other items such as those relating to internal repression, interception and monitoring of communications, energy-related goods or petroleum products. Items that are prohibited are defined in individual SAMLA Regulations. There are prohibitions on the supply or delivery and acquisition of crude oil and petroleum products in Syria or the provision of related financial services or funds. These prohibitions are set out in The Syria (Sanctions) (EU Exit) Regulations 2019. There are exceptions to these prohibitions which apply in certain defined circumstances, which are set out within the Syria (Sanctions) (EU Exit) Regulations 2019. An exception applies automatically and does not require you to obtain a licence in accordance with the Regulations. There are specific circumstances in which a licence may be granted for certain activities that would otherwise be prohibited by the Regulations. These are set out at: Syria sanctions: guidance.

Trade controls

• The UK imposes trade controls on trafficking and brokering of certain controlled goods, such as military goods, from one overseas country to another. These are contained in Part 4 of the Export Control Order 2008.
• Goods which are subject to trade controls are specified in category A, category B and category C, of Schedule 1 to The Export Control Order 2008 (legislation.gov.uk).
• Article 20 of the Export Control Order 2008 sets out what trade controls apply in respect of embargoed destinations. A prohibition under Article 20 does not apply where there is the same prohibition in a regulation made under SAMLA.

Transit controls

• Certain goods transiting the UK are regarded as being exported when they leave the country and are subject to control. Article 17 of the Export Control Order 2008, includes a transit and transhipment exception, meaning that in many situations a licence is not required.
• This exception does not apply to certain goods destined for countries listed in Schedule 4 of the Export Control Order 2008, meaning that a licence is required to transit goods through the UK or tranship them in the UK with a view to re-exportation to these countries.
• The Export Control Order 2008 includes a list of the countries which are subject to transit controls for military goods (Schedule 2), and a list of countries which are subject to transit controls for Category B goods. Category B of the controls comprises small arms and light weapons, unmanned aerial vehicles (UAVs), long-range missiles and man-portable air-defence systems.
• Transit controls apply to Category A goods for all countries.

Can I export or trade overseas in military goods, sensitive ‘dual-use’ items and other goods and services subject to trade sanctions?

A. The export and trade in these items is controlled and subject to licensing requirements. The Export Control Joint Unit (ECJU) in the Department for International Trade (DIT) operates the licensing regime for exports of, and overseas trade in, military goods, sensitive “dual-use” items (i.e. civilian items which also have military applications), and for goods and services subject to trade sanctions. The licensing regime seeks to ensure that such items are not transferred where they may, for example, provoke or prolong conflict, be used for internal repression, pose a threat to national security, or be in breach of any of the UK’s international obligations or commitments. The list of controlled goods can be found at: Exporting controlled goods

How do I apply for an export licence?

A. Licence applications should be submitted to the ECJU through the SPIRE online licensing system. Applicants must provide a full and clear description of the items to be exported, details of the consignee and end-user of the items, and a description of the intended end-use of the item(s). Applicants must also attach the correct end-user documentation when submitting an application. The ECJU aims to process 70% of Standard individual export licences (SIELs) and Standard individual trade control licence (SITCLs) applications within 20-working days and 60% of Open individual export licence (OIEL) applications within 60-working days. These targets may be exceeded where the destination country is subject to sanctions or is suffering conflict or instability. Items and activities prohibited under SAMLA Regulations are subject to exceptions and licensing requirements. For example, certain sanctions regulations provide exceptions for certain activities carried out solely for humanitarian purposes (e.g. fuel payments in the Syria regime). Exceptions are set out in the Regulations and does not require you to obtain a licence. There are specific circumstances in which a licence may be granted for certain activities that would otherwise be prohibited by the Regulations. These are set out in the statutory guidance published for individual sanctions regimes. See information on UK sanctions regimes currently in force: UK sanctions regimes. If you have specific queries surrounding certain trade prohibitions under any sanctions regimes, please direct them to \tradesanctions@trade.gov.uk.

Where can I find out more about export licences?

A. Further information about the controls, including the lists of goods for which a licence is required and guidance on the licence application process, is available from: Export Control Joint Unit. For further information, see: Export controls: military goods, software and technology Export controls: dual-use items, software and technology, goods for torture and radioactive sources Trade sanctions, arms embargoes, and other trade restrictions UK sanctions regimes

Further Information

The FCDO is responsible for the UK’s sanctions policy, including all international sanctions regimes and designations. For general information on sanctions, contact FCDO’s Sanctions Unit on \sanctions@fcdo.gov.uk. HM Treasury, through the Office of Financial Sanctions Implementation (OFSI), is the UK competent authority for the implementation and enforcement of UK financial sanctions. If you have any further queries on financial sanctions, please contact OFSI at:\ofsi@hmtreasury.gov.uk or by calling the general enquiries line: +44 (0) 20 7270 5454. For general guidance on export controls and trade sanctions, contact the Export Control Joint Unit (ECJU) in the Department for International Trade: Email: \exportcontrol.help@trade.gov.uk Helpline: +44 (0)20 7215 4594 To receive updates about arms embargoes and changes to strategic export control legislation, subscribe to the Export Control Joint Unit’s Notices to Exporters. For general guidance on import controls and import sanctions, contact: \importcontrols@trade.gov.uk You can also find more information on arms embargo and trade control at: Trade sanctions, arms embargoes, and other trade restrictions.

Proscription

Proscription

Under Section 3 of the Terrorism Act (TACT) 2000, the Home Secretary may proscribe an organisation if they believe it is concerned in terrorism, and it is proportionate to do so. The Home Secretary only exercises the power to proscribe after thoroughly reviewing the available evidence on an organisation. This includes information taken from both open sources and sensitive intelligence, as well as advice that reflects consultation across Government, including with the intelligence and law enforcement agencies. There are several criminal offences associated with proscription, which are set out in sections 11 to 13 of TACT 2000. It is a criminal offence for a person in the UK to:

• belong to a proscribed organisation;
• invite support for a proscribed organisation;
• recklessly express support for a proscribed organisation;
• arrange a meeting in support of a proscribed organisation;
• wear clothing or carry articles in public which arouse reasonable suspicion that an individual is a member or supporter of a proscribed organisation; or
• publish an image of an article such as a flag or logo in the same circumstances.

The penalties for proscription offences can be a maximum of 14 years in prison and/or an unlimited fine. The investigation and prosecution of offences relating to proscribed organisations is a matter for the police and the Crown Prosecution Service.

What is a proscribed organisation?

A. A proscribed organisation is one that is included in the list of proscribed organisations in Schedule 2 of TACT 2000, or which has been specified as an alternative name for a listed organisation by an Order made under section 3(6) of TACT 2000. The Home Secretary can proscribe an organisation if they believe that it is concerned in terrorism as defined by section 3(5) of TACT 2000. The organisation is added to the list of proscribed organisations by way of an Order that must be agreed by both Houses of Parliament.

Where can I find the list of proscribed organisations?

A. The list of proscribed organisations under TACT 2000 can be found at: Proscribed terrorist groups or organisations

What are the offences relating to a proscribed organisation?

A. Section 11 of TACT 2000 makes it an offence to be a member of a proscribed organisation. Section 12 of TACT 2000 makes it an offence to invite support for a proscribed organisation; express an opinion or belief that is supportive of a proscribed organisation and in doing so is reckless as to whether a person to whom the expression is directed will be encouraged to support a proscribed organisation; or to arrange, manage or assist in arranging or managing a meeting in support of a proscribed organisation. Section 13 of TACT 2000 makes it an offence to wear clothing, carry or display articles in public in such circumstances as to arouse reasonable suspicion that an individual is a member or supporter of a proscribed organisation; or to publish an image of an item of clothing or other article, such as a flag or logo in the same circumstances.

Do the offences relating to a proscribed organisation apply overseas?

A. Yes. The section 11 offence of membership of a proscribed organisation has had extra-territorial jurisdiction since 2006. From 12 April 2019, section 12 and 13 offences of inviting or recklessly expressing support for a proscribed organisation, and the offences of displaying or publishing articles, also have extra-territorial jurisdiction for British nationals and UK residents. The offences do not prevent INGOs interacting with proscribed organisations overseas although the Government encourages compliance with the CCEW’s guidance on conduct etc. For more information, please see Chapter 1 of the Charity Commission’s Compliance Toolkit.

Is it an offence to arrange or manage a meeting with a proscribed organisation?

A. Section 12(2) of TACT 2000 provides that it is an offence to arrange or manage (or assist in the arrangement or management of) a meeting in the knowledge that it is to support a proscribed organisation, to further the activities of a proscribed organisation, or is to be addressed by a person who belongs or professes to belong to a proscribed organisation. However, section 12(4) provides a defence, in the case of a private meeting addressed by a member of a proscribed organisation, if a person can prove that they had no reasonable cause to believe that being addressed by a person who belongs or professes to belong to a proscribed organisation would support the proscribed organisation or advance its terrorist activities. Further, the explanatory notes to TACT 2000 explain that the defence in section 12(4) is intended to permit the arrangement ...