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Joshua
Joshua, Lawyer
Category: Law
Satisfied Customers: 26069
Experience:  LL.B (Hons), Higher Prof. Dip. Law & Practice
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Joshua

Resolved Question:

Hi Joshua
Submitted: 2 years ago.
Category: Law
Expert:  Joshua replied 2 years ago.
Joshua :

Hello and thank you for your question. I will be very pleased to assist you. I'm a practicing lawyer in England with over 10 years experience.

Joshua :

Hello how may I assist?

Customer:

I was arrested in 2006 for indecent assault but the case never got to court as the witness essentially became uncontactable. My concern is that I may need to travel to the US in a few months for work

Joshua :

Thanks. May I ask what the outcome was? Were the charges dropped? Did you accept any caution or otherwise?

Customer:

no caution. I can only assume the charges were dropped

Customer:

This was under Scottish law btw

Joshua :

Thanks. You can contact your local police station to ask them for a copy of your police national computer record to be sure. Am I correct to assume the above is the only time you have been charged or arrested by the police?

Customer:

yes indeed it was

Customer:

I am concerened that I may have to apply for a visa and that this may be turned down, and I may lose my job

Joshua :

Thanks. From what you say, if you are correct, you should have no UK criminal record and therefore you would be entitled to think that you would have no problem with travel. However the US does not recognise the Rehabilitation of Offenders Act dealing with spent convictions (not that you have any) and goes further, requiring you to disclose if you have ever been arrested; according to US immigration law, you may not not be eligible for the visa waiver programme even if you are innocently arrested and as a result and accordingly would need to apply to the US embassy for a visa are to travel to the United States. You must therefore decide how you wish to proceed. The US does not have routine access to the police national computer here in the UK and certainly some travellers take the cavalier attitude that they will not declare an arrest or caution because there is no way the Americans can know about it. In many cases this is probably correct that although there is intelligence sharing between the UK and the US, this usually relates to terrorism related offences and not more minor crimes. However if the authorities in the United States do discover your arrest they can refuse entry and deport you back to the UK which will make repeated travel to the United States very difficult.

Joshua :

Equally you should be aware that there is no guarantee of the US embassy issuing you a visa for travel if you were to answer truthfully though it would be unusual for a visa to be denied where there is no conviction. Accordingly you have a difficult decision to make. Anecdotally persons with cautions and similar minor crimes who do not declare them seems to have little difficult in travelling. However I cannot encourage you or suggest that it would be correct to do other than answer the question truthfully. The final decision has to be your own.

Customer:

this is the dilemma I am in - take the risk or be honest - I lean towards the latter, but my concern is that even if I do, they might turn me down due to arrest being for moral turbitude. What do you think? what chance is there that this would happen?

Customer:

arggh just read the bottom part of your answer - sorry

Joshua :

It is a dilemma which many people go through each year. You will appreciate I cannot recommend that you do not declare truthfully. In practice you may consider preparing a list of pros and cons and balance them. It is unlikely that the Americans will be able to know of your arrest unless you tell them but it is not possible to guarantee that they will not.

Customer:

Ok Joshua - thank you for your help

Joshua :

If you do declare you will know I am sure that you will have to apply for visas for all travel to the US for ever unless they change their law. If you don't you could be deported on arrival if they were to find out somehow.

Customer:

One last question - does the business visa allow me to travel on holiday as well? - I presume not

Joshua :

I suppose it comes down to balancing the pros and cons as above with your appetite for risk and the probably low liklihood of their knowing of your arrest. It would be sensible to confirm your PNC record is otherwise clear as above however so you can make a decision based on all the facts.

Customer:

On the PNC - does that include all records across the UK - inc. Scotland? I saw something on the internet earlier that suggested this was not the case

Joshua :

A working visa to the USA would not prohibit ancillary travel for tourism to the UK though the promary purpose of your trip should be declared properly.

Joshua :

Yes the PNC contains details of offences across the UK which of course does (for the moment at least) include Scotland. It will not contain offences from other countries as a matter of course.

Customer:

ok great - I'll confirm the PNC records

Customer:

I think that might be it for now

Joshua :

A pleasure. Good luck with your decision. It is a diificult one. I hope you make the right decision for you.

Joshua :

If I can assist any further as the situation develops please do not hesitate to revert to me

Joshua :

If you have no further questions for now I should be very grateful if you would kindly take a moment to rate my service to you today. Your feedback is important to me. If there is anything else I can help with please reply back to me though

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