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I want to travel to America, but I have a conviction/been arrested. Can I still travel there?


Answer

The USA have a visa waiver programme for any person holding passports from certain countries (United Kingdom passports are included) as long as that person has never been arrested and/or convicted.

If you have been arrested, you must declare it whether or not that arrest resulted in a conviction. The Rehabilitation of Offenders Act 1974 does not extend to the USA so you must declare all convictions regardless of whether they are classed as spent or not.

Most minor road traffic offences that were dealt with by way of fixed penalty (i.e. no arrest or court appearance) do not count and you will be eligible to travel under the visa waiver programme.

If you have been arrested/convicted, then you must apply for a visa from the US Embassy in London before you travel to the USA. Failure to have a visa means that you could be refused entry and returned home at your own expense. Have a look at the Visa Waiver Wizard (first link in Related Information) which only takes a minute to complete - it is just a guide for your own information, you do not have to enter personal details.

A conviction could mean that you are classed as permanently ineligible to travel to the USA, however, you may be able to apply for a waiver of permanent ineligibility from the Department of Homeland Security. This is not automatic and depends on several factors depending on the nature of the crime and when it was committed.

If you are unsure it is always better to check as you could be refused entry to the USA. In the current climate, it is highly likely that the USA authorities will be aware of your personal details before you travel to the USA.

Also, see the website in Related Information for more details.

Related questions


Answer

A caution is a formal warning that is given to a person who has admitted the offence. If the person refuses the caution, then they will normally be prosecuted through the normal channels for the offence. Although it is not technically classed as a conviction (as only the Courts can convict someone) it can be taken into consideration by the Courts if the person is convicted of a further offence.

Cautions are covered by the Rehabilitation of Offenders Act 1974 and become spent immediately (apart from conditional cautions which will become spent after 3 months). Unless applying for particular types of work (see below), a person who has spent cautions does not have to disclose them to prospective employers and employers cannot refuse to employ someone on the basis of spent cautions.

However, when applying for particular types of employment, for example, working with children or vulnerable adults, certain professions such as law, health care and pharmacy, senior management posts within certain sectors and employment where matters of national security are involved, the application form will state that it is exempt from the Rehabilitation of Offenders Act 1974. In these situations, you may need need to disclose your caution and it may be disclosed on your DBS criminal records check. See Q89 for further guidance on whether your caution will be disclosed.

Cautions will always remain on a person's record. There are only exceptional circumstances when a caution could be removed from a person's record and it is anticipated that such incidents will be rare. Examples of such possible circumstances are that it was found that the original arrest or sample was unlawful or where it was found beyond all doubt that no offence existed. Any requests that fit the above criteria should be directed to ACRO Criminal Records Office. Please see the link in the Related Information for further details.


Answer

A Community Resolution is a method of restorative justice and is an alternative way of dealing with less serious crimes and incidents, allowing officers to use their professional judgement when dealing with offenders. It can be used for offences such as low-level public order, criminal damage, theft, and minor assaults, where the victim has agreed that they do not want the police to take formal action.

The use of Community Resolution will enable victims to have quick resolutions and closure to their crime, offenders will receive speedy justice and there will be reduced bureaucracy for police officers. Examples of a Community resolution could include a simple apology, an offer of compensation or a promise to clear up any graffiti or criminal damage.

Community Resolutions do not constitute a criminal record and are not currently recorded on the Police National Computer. They are however recorded locally on police information systems and can be accessed for intelligence purposes. A previous Community Resolution will be taken into consideration if further offences are committed.

Community Resolutions are not disclosed as part of a Disclosure and Barring Service (DBS) standard check. They might, however, be disclosed as part of an enhanced check for certain offences in the 'relevant information' section, i.e. the offence has a bearing on the kind of work you are applying for.


Answer

A spent conviction is a conviction which, under the terms of Rehabilitation of Offenders Act 1974, can be effectively ignored after a specified amount of time. The amount of time for rehabilitation depends on the sentence imposed, not on the offence. The more serious the conviction, the longer the period of rehabilitation. For example, if you have received a prison sentence of more than four years, the conviction will never become spent, but cautions become spent immediately (apart from conditional cautions which will become spent after three months).

The Act aims to rehabilitate offenders by not making their past mistakes affect the rest of their lives if they have been on the right side of the law for some time. For details of the length of time before a conviction becomes spent, see the NACRO website in Related Information.

Unless applying for particular types of work (see below), a person who has spent convictions and cautions does not have to disclose them to prospective employers. Employers cannot refuse to employ someone with spent convictions.

However, when applying to work in certain types of employment, for example, working with children or vulnerable adults, certain professions such as law, health care, and pharmacy, senior management posts within certain sectors and employment where matters of national security are involved, the application form will state that it is exempt from the Rehabilitation of Offenders Act 1974. In these situations, you will need to disclose all your cautions and convictions, and they may be disclosed on your DBS criminal records check.

Where a post is exempt from the Rehabilitation of Offenders Act 1974, the law protects people from having some old and/or minor convictions and cautions disclosed to employers but sexual and violent offences will always be disclosed, as well as any convictions that resulted in a custodial sentence, and all convictions if a person has more than one conviction. Regarding any other convictions and cautions: convictions are not shown after eleven years (in relation to persons 18 or over) or five and a half years (in relation to persons under 18), and cautions are not shown after six years (in relation to persons 18 or over) or two years (in relation to persons under 18). In order to determine whether your caution/conviction needs to be disclosed and whether it will show on a DBS check, see the flow chart below:

Spent Conviction Flow Chart

Please be aware that the information that police forces disclose may differ from the above and particularly in relation to enhanced disclosures, any information that the Chief Constable feels relevant with regards to the reason for the check, can be disclosed.

 

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