If you’ve travelled to the USA recently, you’ll be aware of the ESTA system. ESTA – or Electronic System for Travel Authorization – was introduced after the 9/11 attacks. There are two ideas behind the ESTA system. The first is to detect people planning to travel to the US who might be a security threat. The second is a brief criminal records check on travellers. The current US government is tightening up on everything immigration-related. So if you have a criminal record, what should you do?
How do you get an ESTA?
All travellers to the US need an ESTA, or a standard Visa, before boarding the plane. ESTA replaced an old system called visa waiver. It recognises the large number of people travelling from the UK to the USA, and is a way of speeding up immigration. British holidaymakers or business people can apply for an ESTA online. Each person travelling needs a separate ESTA, even children. The cost for each visa is $14. The form is fairly straightforward. Complete your name, address, date of birth and passport details. You will also tick “yes” or “no” to several questions about your past. Take care with this part. If you accidentally click “yes” to a question asking if you’ve ever been part of a terrorist group, expect an immediate rejection. Then a lengthy trip to the US embassy to explain your mistake and beg them to let you in.
Criminal Records and ESTA
Assuming you’re not a terrorist, or planning genocide, the most tricky question is the one about criminal convictions. This is because the terminology used is American. It doesn’t translate neatly into UK law. The question states:
“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?”
The problem is with the word “serious”. Does the American government consider the same thing serious as the UK police? Should you declare a conviction for graffiti when you were 16? Or what about getting into a fight outside a pub and being cautioned for affray – is that “serious damage to another person”?
Criminal records and “moral turpitude”
What the Americans are getting at is the concept of moral turpitude. This isn’t a concept we have in UK law, but refers to crimes which are serious enough to call your character into question. There are three categories of crimes which fall into this broad definition of moral turpitude:
- crimes against the state such as fraud, tax evasion or bribery
- crimes against property such as burglary, arson, receiving stolen property
- offences against individuals such as murder, rape, serious assault.
All of these crimes have to be declared. Unlike DBS checks where you can “forget” the offences after a longer period, the US immigration team have longer memories. Of course, declaring them means that you’ll be refused an ESTA, and if you’ve left it until the last minute, you’ll have to cancel your travel plans. If you have no ESTA and no other visa, you will be refused boarding. The only option is making an appointment to get a B2 Visitor Visa, or a B1 Business Visa. And the bad news is that you will have to appear in person for an interview with a US consular official. Even worse, the only two places you can do this in the UK are London and Belfast.
Can’t I just lie? Can they find out?
Getting a B2 or B1 Visa is undoubtedly a hassle. But you shouldn’t really consider being economical with the truth either. It’s certainly true that the US authorities can’t ask for criminal records checks or ask you to get a CRB certificate. But they have sophisticated databases and ways of checking up on people. If you lie and are caught, you will be refused entry. Furthermore, a “black mark” on your file will make it very difficult to travel to the United States in the future.
Advice on travel to the US for those with criminal records
If you think you have a crime in your distant past which counts as moral turpitude, get your visa application in as soon as you can. Prepare for a trip to London or Belfast, or get advice from a specialist in US immigration.
But don’t chance it, lie and hope for the best.