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Jo C.
Jo C., Barrister
Category: Law
Satisfied Customers: 32086
Experience:  Over 5 years in practice
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Customer Question

Submitted: 4 years ago.
Category: Law
Expert:  Joshua replied 4 years ago.

Joshua :

Thanks for your question. Please kindly RATE my answer when you are satisfied

Joshua :

There are two components to this. The caution will show up on any standard or enhanced CRB (now called DBS) certificates if you require one for your job. It will not show up on basic certificates. As a result of a very recent change of law the caution will now be filtered out after 6 years providing it is your only conviction and will not thereafter show up on standard or enhanced DBS certificates. Unless you require a standard or enhanced DBS check for your work in the UK except with certain limited exceptions for certain jobs, you do not need to declare the caution to employers or insurance companies etc as the caution is spent under the Rehabilitation of Offenders Act immediately. That is in relation to the UK. In relation to the US the position is not so straightforward.

Joshua :

The US does not recognise the Rehabilitation of Offenders Act and the caution must be declared and according to US immigration law, you may not not be eligible for the visa waiver programme 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 arguably cavalier attitude that they will not declare a conviction (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 and the ability for the US to make an interpol request for a copy of your record, this usually relates to terrorism related offences and not more minor crimes and interpol requests are not routine. However if the authorities in the United States do discover your conviction they can refuse entry and deport you back to the UK which will make repeated travel to the United States very difficult.

JACUSTOMER-47rql326- : Joshua,
JACUSTOMER-47rql326- : Ji
JACUSTOMER-47rql326- : joshi
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 disclose the caution. Accordingly you have a difficult decision to make. Anecdotally persons with cautions and similar minor crimes who do not declare them seem to have little difficulty 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 must be your own.

JACUSTOMER-47rql326- : Joshua, please answer the question - this is as much use as cardbou
JACUSTOMER-47rql326- : cardboard wellingtons.
Joshua :

If you were found out in falsely declaring no convictions then you may be refused entry or deported and this would be a significant issue when you came to apply to travel there in the future. If you answer honestly you would likely not be eligible for the waiver programme and would have to attend the US embassy for an interview in order to obtain a visa in which you could be refused one. The US do not apply the same standards to criminal records as we do though and even an arrest can be looked upon negatively by the US authorities - fair or not. The US are particularly sensitive to crimes of moral turpitude as they call them (we call the dishonesty offences) and crimes involving drugs. The US Immigration and Nationality Act provides that someone who has been convicted as being generally inadmissible so there is no guarantee that a visa would be granted

JACUSTOMER-47rql326- : The issue is mt daughter was cautioned in March 2009 for having an amphetamine tablet on her - she will be accompanying me on a trip to the US - is there an issue or not?
Joshua :

Reference your last post as you will see from the above, a caution does effect travel to the US because your daughter is therefore ineligble for the visa waiver programme.

JACUSTOMER-47rql326- : It is a caution not a conviction
Joshua :

Unfortunately a caution is a criminal conviction. It is no less a conviction than a conviction handed down in court.

JACUSTOMER-47rql326- : I have read up all this online already - is a caution spent after 5 years ?
Joshua :

However it is treated differently to a criminal conviction applied in the courts in that it is considered spent immediately. This means it does not have to be disclosed to employers subject as above under the rehabilitiation of offenders act. It is now filtered out of records for CRB(nor DBS certificates) after 6 years providing this is your daughters only offence. However as above the Americans do not ever consider convictions "spent". They do not recognise the rehabilitation of offenders act.

Joshua :

The correct thing to do is to declare the caution and for her to attend the US embassy to apply for a visa. There is no guarantee one would be issued. Accordingly many people decide with minr crimes not to declare them though there are risks in this approach too.

Joshua :

There is a useful information guide on the subject which you may find helpful here:

Joshua :‎

Joshua :

Is there anything above I can clarify for you?