Applying For A Usa Esta With A Uk Spent Conviction

[xAsh]

Hi Guys, please help. Has anyone travelled to the USA with an esta from the UK with a spent conviction? On the criminal convictions part of the online form it asks 'have you ever been convicted of serious damage to a property or serious harmed someone'. I got a spent conviction for harassment which was a.mistake and my only conviction in 2015 so no serious harm and no violence. I applied for Canada a while back and they asked for a police report but didn't go in the end and fancy the USA.

Is it likely from your experience that I'd have any issues on arrival? Thank you

[Buenchico]

As far as the USA is concerned, no conviction is ever 'spent' because the USA doesn't recognise the UK's Rehabilitation of Offenders Act.

The USA has no direct access to UK criminal records at the moment because EU law prohibits the UK from making them available to the USA. However that's likely to change after Brexit, as the USA is known to require direct access to a country's criminal records as part of any trade deal that it might enter into with such a country.

However the UK does make such information available to the USA upon receipt of a specific request for such information. (There seems to be some evidence that the USA makes far more such requests than are actually required to prevent terrorism, so it's not clear what criteria they use when deciding whether or not to seek the information).

I've been reading (and responding to) many questions like yours for well over a decade on this site. There have been plenty of people who've stated that they've managed to get into the USA by 'forgetting' criminal convictions when applying for an ESTA. However there have also been just a handful from people who've been refused entry.

You also need to consider what might happen if you can't get into the USA. Up until recently, trying to enter the USA without valid documentation wasn't a criminal offence in itself. All that could happen was that you'd be held in confinement until you could be placed on a flight back home. (Even then, that could be problematic as, in addition to losing out on your holiday, you'd have to pay for a flight ticket purchased at 'on the day' rates, the price of which could run into thousands of pounds). However the Trump administration has now made it a criminal offence to seek entry into the USA without the correct paperwork, meaning that you can now be imprisoned for doing so.

As I've already said, lots of people do currently manage to get into the USA by failing to declare their criminal convictions but there's always going to be a risk (and, with the UK leaving the EU, that risk might get substantially greater). It would be far safer to seek a visa.

Harassment doesn't count as a crime 'of moral turpitude' unless it was racially aggravated. (Source: https://hub.unlock.org.uk/knowledgebase/identifying-whether-my-offence-is-a-crime-involving-moral-turpitude-cimt/ ). So, assuming that there wasn't any racial element involved, you'd only need to convince the US Embassy that you should have a visa (rather than to seek a 'waiver of inadmissibility' from Washington, as you would need to do for a crime involving 'moral turpitude').

[JimF]

In addition to Chris' detailed answer:

https://www.alllaw.com/articles/nolo/us-immigration/crime-enter-illegally.html
"For the first improper entry offense, the person can be fined (as a criminal penalty), or imprisoned for up to six months, or both."

Does that appear worth the risk to you?

[ToraToraTora]

to avoid problems when you get there it's best to apply for a visa and be honest with them before you go from what you say above you'll be fine. As chico says you can lie about the whole thing and probably get away with it but if you get caught you'll be personal non grata for ever.

[xAsh]

Thank you very much Buenchino for that answer, I really appreciate it. Thanks also Jim. My offence wasn't racially aggravated. Surely if I answer the question that I haven't seriously hurt someone or serious criminal damage like arson I'm not lying am I? I applied for Canada also, asked for police report. Do they share this with the USA also? I'm considering all the options with your information
Thanks all

[xAsh]

Thanks Tora also. the criminal record question they ask I don't see how i would be lying if I answered no?

[JimF]

You have a criminal record; there's nothing you can do about that now. As has been explained to you, the US does not recognised the UK's Rehabilitation of Offenders Act so, when you are asked if you have a criminal record, answering that you don't is obviously a lie.

[jno]

deepends on the exact wording of the question, JimF. If it's as xAsh quotes it then he can answer No. But I don't know what the current requirement is.

[ToraToraTora]

they would not ask a subjective question:
"'have you ever been convicted of serious damage to a property or serious harmed someone'" - that is too subjective. They are more likely to simply ask "any criminal convictions? full stop. Then you must answer yes. I advise going through the VISA application process before you go.

[JimF]

The ESTA application asks if you have ever been arrested, even if that arrest did not lead to prosecution and a subsequent criminal record. The OP has a criminal record - there's no way to say otherwise without lying:

https://uk.usembassy.gov/visas/visa-waiver-program/additional-requirements/

[JimF]

This really is a thing! Don't do it:
https://www.bbc.co.uk/news/world-us-canada-50061122

[alavahalf]

Approx 30 years ago, a close relative found three intruders in his house in the middle of the night. As he assisted them off his property they unfortunately got injured and two of them needed an ambulance to leave the scene.
He was charged with ABH and had to pay compensation to his victims.
Last year he to wanted to go to the New York, he was honest and answered all the questions on the application truthfully.
On arrival in NY he was taken off to a side room and questioned at great length. He has had no further additions to his criminal record since his one and only crime .. 30 years previously.
They did let him carry on with his visit, but he did think it was touch and go at one point.

[xAsh]

Hi Guys, thank you very much for your help. I appreciate it.

I've just gone on the form for the ESTA, it asks:

"Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?"

So I think I should be ok to answer 'no'. Do you agree? Thanks

[10ClarionSt]

I think it's just asking if you have ever been arrested. Full stop. Then asks for other information. Have I got that right?

[xAsh]

Hi Thanks for the reply. No it literally just says that question. Nothing about having been arrested.

[xAsh]

I think the question relates to moral turpitude according to the website

[dannyk13]

The question reads "have you ever been arrested or convicted etc" or not and so you would be lying if you said no.

[10ClarionSt]

Anyway, I know lots of people with serious convictions who have been to Las Vegas, Orlando, New York etc. At the moment, the U.S authorities rely on you giving them the information because they don't have it. As Chris said earlier, we don't know how long this will last for, post-Brexit. And to what extent the information they will be given.

[10ClarionSt]

If any.

[xAsh]

Thanks Guys. The way I read the question is different, they are asking if you have been arrested or convicted for serious offences, not arrested at all?

I applied to Canada and the Canadians asked for a police report. Is it likely USA will have access to this?

Thanks

[10ClarionSt]

It's only a guess, but I would think not. Govts do share information but it's only of a serious nature, things like drugs, money laundering, terrorism, firearms etc.