I have lost count how often I have received a client query regarding their criminal background and the US immigration implications, but they disregard the time they were let off with a caution. It is not surprising that one might think that a caution is not on our record, and even if it is, it’s only a Police Caution, right?
Wrong. A UK caution is not considered to be a conviction, but the applicant should still declare the arrest and caution when applying for a US visa.
When a person commits a minor crime in the UK, the Police or Crown Prosecution Service (“CPS”) can decide whether to “dispose” or take to court. This disposal can amount to a caution, also known as an official warning. It is not a conviction in the UK, but the problem is that it can do down on the individual’s record.
A caution is essentially an admission, even if the individual agrees to receive a caution merely because they do not want to be charged and potentially go through with a court case. Perhaps even the UK Solicitor advised that taking a caution is the best result, but what we need to consider, is whether the “admission” is for a crime involving moral turpitude. This is when we are faced with eligibility issues for the US visa.
The law states that the person must admit to the commission of the essential elements of the crime involving moral turpitude. This must be “…explicit, unequivocal and unqualified.” There must be no doubt that the individual was aware of what they were “admitting” to. All of the circumstances of the admission to a crime involving moral turpitude need to be carefully considered.
The UK Home Office issued guidance in July 2008 requiring that a written explanation of the caution be given prior to accepting a caution. As a result, consular officers acknowledge that the standard of a caution before July 2008 meets entirely different standards whereby the person is not necessarily explicitly confessing to the crime (however seemingly minor) at hand.
The circumstances of an arrest or caution, however, are entirely irrelevant for the purposes of traveling under the Visa Waiver Program (“VWP”), i.e. ESTA. The person may not travel under the VWP and they may even have issues obtaining a B-2 Visitor Visa. This is particularly the case recently, as the US Embassy in London has begun refusing visas for arrests disposed of through cautions. If the visa is denied, the individual then needs to obtain a waiver of inadmissibility, which is a lengthy procedure.
What does this all mean? In a nutshell it means that police cautions issued post 2007 may amount to admissions of guilt. If you are applying for a non-immigrant visa, you may be eligible for a waiver of inadmissibility. If you are applying for an immigrant visa (green-card) then you may be inadmissible without the possibility of a waiver. This is particularly the case for cases involving possession of drugs.
Even the rich and famous may have issues with entering the US with a criminal record, caution, or even a court admission of having “snorted cocaine and smoked cannabis.” Nigella Lawson was prevented from boarding her flight to the US in April 2014. Her US show, The Taste, was at jeopardy.
Don’t try to tackle this on your own. Ensure you hire a competent US Immigration Attorney who can dissect your case and advise you as to the best way to proceed.