UK Export Control: Revised Control Criteria & End-Use Catch all and China 2022 changes
(FREE) The UK is amending its export control legislation and criteria for issuing licences. Exporters should be aware of the upcoming changes.
On 8 December 2021, the UK presented a package of measures to update the UK’s export control regime. Licence applications will be assessed against new military end-use criteria and more. I welcome you to another video by Customs Manager. In this channel, we post about Customs and Global Trade matters, import, export, transit, customs special procedures, free trade agreements and export controls. If you like this kind of stuff, we’d love you to subscribe, like and share so more people get to join our discussion and info update.
Export Controls in the UK
The UK implements an export control regime for military, dual-use and other sensitive goods and technologies. They have a dual objective: To promote global security whilst facilitating responsible exports.
With these controls, the UK can ensure that goods exported from the United Kingdom do not
subsidise the proliferation of weapons of mass destruction (WMD)
lead to a threatening build-up of conventional weapons.
With a strict licencing regime, the UK can decide who has access to sensitive technologies and capabilities and who has not.
Moreover, export controls aim to prevent the use of strategic items for internal repression or violations of global human rights law. They are one of how the UK implements a range of international legal commitments, including the Arms Trade Treaty.
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UK Export Controls are good for legitimate trade
Export controls also support the UK’s defence and security industry. The legitimate global trade in military equipment and technology, as well as in dual-use items, enables governments to
protect ordinary citizens,
preserve law and order against terrorists and criminals,
defend against external threats.
In this way, export controls also support the UK’s defence and security industry and to promoting the legitimate trade in items controlled for strategic reasons.
But export controls evolve as threats evolve
As new ways to conduct warfare emerges, novel threats to security become known and innovative technologies become a danger to society, export controls must also change. So, the UK export controls change, too.
Changes to UK Strategic Export Licensing Criteria
The UK revised the so-called “licensing criteria for strategic export controls”. These are formerly known as “Strategic Export Licensing Criteria” for granting export control licences.
These criteria will be applied with immediate effect to all licence decisions (including decisions on appeals) on goods, software and technology subject to control for strategic reasons (collectively ‘items’) for:
export
transfer
trade (brokering)
·transit/transhipment
The Criteria will also be applied to the provision of technical assistance or other services related to those items, to the extent that these activities are subject to control.
Case by Case
These new controls will not be applied mechanistically, but on a case-by-case basis when a licence application is made. The UK licencing authority will take into account all relevant information available at the time the licence application is assessed. The UK is on record in saying that they will not refuse a licence on the grounds of a purely theoretical risk of a breach of one or more of those criteria. The DIT will continue to take into account advice received from FCDO, MOD, and other government departments and agencies as appropriate.
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Catch-All: EU military end-use control not good enough anymore
The second change that the UK will see in 2022 concerns the definition of military end-use has been enhanced to improve its effectiveness.
Currently, the control can only be applied to the export of otherwise non-controlled items which are
intended for use as components in, or production equipment for,
military equipment
in an embargoed destination.
This does not allow us to fully address threats to national security, international peace and security, and human rights arising from the use of non-listed items by the military, police or security forces, or entities acting on their behalf, in an embargoed destination.
The change will permit the UK authorities to control, on a case-by-case basis, non-listed items intended for use by the
military,
paramilitary,
security forces or
police forces
of a destination subject to an arms embargo.
The new definition of “military end-use” in 2022
The UK will therefore be amending the definition of “military end-use” to remove the limitation of what constitutes military end-use. The UK will amend the Export Control Order in 2022 and this change will be applied then, expected in Spring 2022.
Businesses must have been informed
The control will only be imposed when the government informs the exporter that a proposed export is intended for military end-use. The control would only be applied where the Government informs the exporter that the proposed export is or may be intended for a military end-use in an embargoed destination.
Exceptions
To minimise the impact on legitimate trade, there will be exemptions for medical supplies and equipment, food, clothing and other consumer goods. To be more specific, there will be exceptions for:
medical supplies and equipment intended for hospitals, or other public health institutions providing medical services
food, clothing and or other consumer goods generally available to the public and sold from stock at retail selling points, without restriction
China: Military Control
The review also concluded that there were anomalies and inconsistencies within the UK's export control regime. As a result of this review, China will be added to the list of those destinations subject to military end-use controls. This will not change the extent of the partial arms embargo on China.
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Conclusion
Taken together, these changes are a step in the right direction to modernize the UK’s export controls. To recall, the export control law of the UK, at least as regards the dual-use part, is currently frozen in time. The dual-use law of the EU, signed in 2009, has been retained by the UK, however, the latest amendment, has not. All innovations that the EU introduced in 2021 are not applicable in the UK (except for Northern Ireland). Nevertheless, these amendments, scheduled for 2022, can strengthen the UK’s ability to prevent exports that might be used directly or indirectly to facilitate human rights violations in all destinations subject to military end-use controls.
The question, of course, remains what happens to all those human rights abuses where there is no military end-use control and UK dual-use and military items continue to be exported…
There is still time for more modernisation….
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