Can I travel the US under the Visa Waiver Programme?

If you are a UK citizen, you can travel to the US without a visa if you intend to stay for 90 days or less, but you are required to apply for authorisation to travel under the Visa Waiver Program (VWP). You can apply for authorisation to travel to or through the US by completing an Electronic System for Travel Authorization (ESTA) form.

If you have a criminal record, you may not be eligible to travel under the VWP. The ESTA form asks applicants for the following information:

  1. 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?

This question relates to ‘moral turpitude’ offences. ‘Moral turpitude’ is a legal term in the US that includes offences relating to:

  • Crimes against the person such as murder, manslaughter, rape, gross indecency, serious assaults, kidnapping
  • Crimes against property such as arson, burglary, theft, robbery, fraud, receiving stolen property
  • Crimes against government authority such as benefit fraud, tax evasion, bribery, perjury

For the classification of offences which are considered to be crimes of moral turpitude, see this document. However, note that factors such as your age at the time of the offence and the length of time that has passed may affect whether an offence will be considered a crime involving moral turpitude for purposes of the Immigration and Nationality Act. According to the legislation, your offence will not be considered one of moral turpitude if:

  • You were under 18 when you committed the offence
  • At least five years have elapsed since the date of your conviction or, where you were sentenced to a period of detention or imprisonment, at least five years have elapsed since the date of your release
  • The maximum possible sentence for the offence was less than 12 months (regardless of the actual sentence you received) and you were sentenced to six months or less

Note that if your offence meets the above conditions, this does not mean you do not need to declare it. The advice from the US Embassy is that if you have ever been arrested or convicted for any reason in any country, even if the arrest did not lead to a conviction, you should answer ‘yes’ to this question. The only exception would be an arrest for a minor motoring offence that resulted in a fixed penalty notice or other out of court disposal.

  1. Have you ever violated any law related to possessing, using or distributing illegal drugs?
  2. Do you seek to engage in, or have you ever engaged in terrorist activities, espionage, sabotage, or genocide?
  3. Have you ever committed fraud or misrepresented yourself to obtain, or assist others to obtain, a visa or entry into the United States?

If you answer ‘yes’ to any of the above questions it doesn’t necessarily mean that you cannot travel to the US. It means that you are not eligible to travel under the VWP. Instead, you will need to apply for a Visitor Business (B1) or Pleasure (B2) visa through the US Embassy. As part of your application, you will need to apply for a police certificate and you may need to attend an interview. The US Department of State have useful information on their website about what they take into account when deciding whether or not to grant a visa. See here for further information about applying for a visa.

My conviction or caution is spent under the Rehabilitation of Offenders Act. Do I still need to declare it on the ESTA form?

Yes. The Rehabilitation of Offenders Act 1974 has jurisdiction in England and Wales only. Other countries have different means by which they deem a person to be legally rehabilitated. The Rehabilitation of Offenders Act does not apply to US visa law.

If I lie on the ESTA form, will I be found out?

The short answer is: probably not. The US authorities do not have access to criminal record information held on the Police National Computer. However, if the authorities have particular concerns about an individual, they may request criminal record information from the Home Office by making an application through Interpol. Such requests, however, are rare.

What are the potential consequences if I lie on the ESTA form?

Criminal prosecution

It is a criminal offence to provide false information for the purposes of obtaining a visa waiver or visa to the US. In the worst case scenario, you will be prosecuted. Prosecution under the Immigration and Nationality Act has a maximum sentence of two years in prison. Prosecution under US Code Title 18 carries a maximum sentence of 10 years in prison.

Refusal of entry to/deportation from the US

When you check in for your flight at a UK airport, you will be asked a series of questions and your answers will be checked against the information provided in your Visa Waiver application. Similarly, when you reach immigration at a US airport, you will be asked to provide your fingerprints and again you will be asked a series of questions and your answers will be checked against your Visa Waiver application.

If your answers conflict with the information you have provided on your Visa Waiver application form, or if the authorities have any doubts about the information you have provided, you may find that you are refused entry to the US and you are returned back to the UK.

Refusal of a future visa application

It may be that you decide to withhold details of you criminal record and successfully travel to, or via, the US under the Visa Waiver Programme. It may then be the case that at some point in the future you need to apply for a visa to the US – perhaps because you take on certain employment – and you need to travel there for longer than 90 days, or you decide to emigrate.

In order to apply for the visa, you will need to supply a copy of your Police Certificate which may disclose details of your criminal record which you had previously withheld. The US Embassy will retain details of your previous Visa Waiver and this may then give them grounds to refuse your new visa application for having previously lied about your criminal record.

Applying for a visa

If you are not eligible to travel under the Visa Waiver Programme, you will need to apply for a Visitor Business (B1) or Pleasure (B2) visa through the US Embassy.

Visa application form

The visa application form asks ‘Have you ever been arrested or convicted for any offence or crime, even though subject of a pardon, amnesty or other similar action?’

The US Embassy advises that they expect you to declare any arrests or convictions, regardless of the nature of the offence or the length of time that has elapsed. Note that the Rehabilitation of Offenders Act 1974 does not apply to US visa law, so even convictions which may be deemed as spent would need to be declared.

Personal Data Sheet (VCU-01)

Where you declare that you have previous arrests or convictions, you will also be required to complete a Personal Data Sheet. This form requires further details about whatever you have declared.

Police certificate

As part of your visa application, you will be required to provide a Police Certificate issued by the Association of Chief Police Officers (ACPO) Criminal Record Office (ACRO). The certificate must be issued within six months of the date of your visa interview.

ACRO filter certain eligible records from Police Certificates after the relevant period of time has elapsed. This means that you may find that some or all of your cautions or convictions are not recorded on your Police Certificate. For this reason, we recommend that you apply for your Police Certificate before completing the Personal Data Sheet.

Visa interview

Once you have completed your visa application, you can arrange an appointment with the Visa Coordination Officer at the US embassy in London. The decision to grant or deny a visa is made on a case-by-case basis. You can improve your chances if you prepare for the interview in advance, in particular thinking about how you can provide evidence about:

  • Why you wish to travel to the US
  • Why you wish to return to the UK (e.g. details of your job and/or family ties)
  • Remorse for your offence(s)
  • What you have learnt from your offence(s)
  • How your circumstances have changed since your offence(s). Take any evidence of behavioural or education courses you have completed; counselling you may have undertaken and any other evidence of rehabilitation

For further advice and information, please contact the Resettlement Advice Service on 0300 123 1999 or email helpline@nacro.org.uk.