‘Can I visit the US if I have a criminal record in the UK?’ and other tricky questions

Obtaining permission to enter the US under its visa waiver or visa programmes is not always a straightforward process. This may especially be the case for someone who has ever interacted with the UK’s criminal justice system. This blog by Stefano Ruis, written in collaboration with Fragomen LLP‘s William Diaz and Sarah Vivet, examines some of the issues in these cases.

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The strict rules governing the US’s visa and visa waiver entry programs mean applicants can experience difficulties even when their interaction with a UK police force was relatively trivial or happened a long time ago.

It has, for example, been the case that would-be visitors have been denied entry clearance to the US after having i) only been suspected of a crime in the UK; ii) arrested in the UK (but faced no further action); iii) accepted a police caution for a relatively minor crime; and/or iv) been convicted of a crime in childhood.

While a complex set of rules governs the analysis of each scenario, any one of these situations has the potential to be interpreted by US consular officers as sufficient reason to deny a visa or to determine that the individual is inadmissible to the US.

The fact that there is no appeal process for US visa applications makes it imperative for individuals who wish to travel to the US to make the best possible application, first time. Although it is possible to re-apply for a visa after a rejection or finding of inadmissibility, it can prove difficult to overcome conclusions drawn during the initial refusal.

While Hickman & Rose does not practice immigration law, our solicitors provide specialist advice in cases where an individual has had some past interaction with a UK police force. Below are answers to some of the most common issues our team advises on.

Can I get information about my arrest deleted?

Any UK police force can retain the record of an arrest for an individual’s lifetime, even if no conviction results. This does not, however, mean that all details about an arrest will always be kept on file.

The law in this area is complex and has changed significantly in recent years. Whether information can continue to be retained depends on the individual case.

It may be possible, in certain limited circumstances, to get data about an arrest removed by challenging the legal basis for its ongoing retention. Achieving this is not straightforward, however, and requires careful advice.

Broadly speaking, the successful deletion of an arrest record depends entirely on the facts of the individual matter. Possible scenarios in which an applicant may succeed include where the individual can argue that the allegation was mistaken and/or malicious; or that no crime occurred; or, in some cases, where they have been eliminated as a suspect and/or someone else is under investigation.

Applications for data deletion are made directly to the Association of Chief Police Officers Criminal Records Office (ACRO).

Can I get information about a police investigation into me deleted?

There are circumstances in which a UK police force may take an investigatory interest in an individual and, in doing so, create a digital record of this fact.

The investigation may be cursory in the extreme. It may stem, for example, from a spurious or even vexatious complaint of criminality which the police force records on its system but ultimately dismisses.

Despite what may be a limited evidential basis for any allegation, information about it may be retained by the police and be disclosable to official bodies such US consular officers in any visa application.

Depending on the circumstances of the matter, it may be possible to seek the deletion of such data. However, the rules are complex and legal advice is essential.

Can I get my police caution deleted?

In the UK a police caution may be given for relatively minor offences as an alternative to prosecution. Cautions can be a sensible choice for suspects who are willing to admit guilt and wish to avoid the uncertainty of a prosecution.

The US Embassy in London’s current policy is to treat cautions occurring on or after 10th July 2008 as being as the equivalent to an admission to the essential elements of the underlying criminal offence.

This means that as far as US immigration is concerned, cautions accepted from 10th July 2008 onwards may be treated as the equivalent of a criminal conviction. This applies even to certain minor offences so that, for example, a caution for simple drug possession will normally result in a finding of inadmissibility to the US if the caution is dated 10 July 2008 or later.

Cautions accepted earlier than 10^th July 2008 are generally viewed to be the equivalent of an arrest with no further action.

Records of police cautions are kept on the Police National Computer (PNC) as well as the local police force’s own database. They may be disclosable in visa applications, as well as in other situations such as enhanced Disclosure and Barring Service (DBS) checks.

It is possible to challenge a police caution in certain, limited circumstances. Where this succeeds, it will then be deleted from both the PNC and the force’s own database. Anyone seeking to challenge a caution should seek early legal advice as the process is complex and can take some time to resolve.

If information about my caution or arrest has been deleted, do I still need to disclose this to US consular staff?

It is incumbent on all would-be US travellers to complete visa waiver and visa application forms accurately and to answer questions from consular staff honestly.

All relevant information about an applicant’s previous interaction with the UK criminal justice system should thus be disclosed. Indeed, applicants must disclose any arrest or conviction anywhere in the world, even if it was later subject to a pardon, amnesty, or similar action. The UK Rehabilitation of Offenders Act does not directly apply when applying for a US visa.

However, it is also the case that some US consular staff can enjoy a significant amount of autonomy and discretion in how they asses the information provided to them.

An application which contains information about an historical arrest or caution but goes on to explain that this information has since been expunged from the record might be looked on more favourably by consular staff. Provided there is no misrepresentation, expungement might help when assessing the totality of the circumstances.

When possible, it is advisable to retain all pre-expungement records as it is within the discretion of the embassy to request these for review.

How can I stand the best chance of getting an application to visit the US approved?

Obtaining the right to visit the US is, for many people, a life-changing opportunity. However, the US has stringent rules which prevent access to some people with criminal pasts.

These facts, plus the absence of an appeal process against any denied visa application, means applying to visit the US can be a ‘one shot; best shot’ situation.

Any potential US traveller who has, in the past, interacted with the UK criminal justice system may benefit from specialist legal advice in relation to getting their data removed from official databases.