If you are planning on travelling to the USA and you have a criminal record, you may be concerned about what records the authorities can see.
We received several anecdotal reports of UK citizens attempting to travel to the US and being turned away due to arrest records, see here for a recent news report.
In 2012 a Subject Access Request to the Association of Chief Police Officers of England, Wales and Northern Ireland (a now defunct organisation replaced by the NPCC) the police stated that the US had no direct access to the Police National Computer (PNC) or the Police National Database (PND).
We wrote to the Home Office to see if anything had changed since 2012 given the recent tightening of US immigration law.
Copied here is the Home Office’s response (click on the image to be taken to a pdf version).
As you will see from the letter, US Immigration Authorities do not have direct access to the UK Police National Computer (PNC) – which means they do not have direct access to UK criminal records.
They may however obtain information via the 5Eyes partnership between the UK, US, Australia, Canada and New Zealand, under Operation Angel Watch. Operation Angel Watch is an intelligence-driven program targeting registered sex offenders travelling abroad who ICE believes are likely to engage in child sex tourism.
The US may also obtain information from the PNC in relation to a “legitimate request”, made on a case-by-case basis to UK law enforcement.
What a “legitimate request” might mean is open to speculation, but likely means in relation to a “policing purpose”. A policing purpose is defined by the College of Policing as:
Policing purposes provide the legal basis for the collection, recording, evaluation, sharing and retention of information and may include one, or a combination, of the following:
- protecting life and property
- preserving order
- preventing the commission of offences
- bringing offenders to justice
- any duty or responsibility arising from common or statute law.
Clearly these categorises are very broad, and might be interpreted to extend to simple spot checks undertake on anyone entering US territory.
The US will in addition uncover criminal records via self disclosure, namely via an ACRO police certificate. A police certificate will typically be requested by the US authorities for any application for a long term visa/citizenship.
Police Certificates and the US
The US has strict requirements on what they require foreign nationals to disclose when travelling to their shores. For example when applying for an ESTA under the Visa Waiver Programme the following question is asked:
Have you ever been arrested or convicted for an offense or crime involving moral turpitude or a violation related to a controlled substance; or have been arrested or convicted for two or more offenses for which the aggregate sentence to confinement was five years or more; or have been a controlled substance trafficker; or are you seeking entry to engage in criminal or immoral activities
The US embassy’s website also states that even people who don’t have a caution or conviction, namely just an arrest record, should not travel under the an ESTA:
We do not recommend that travelers who have been arrested, even if the arrest did not result in a criminal conviction, have a criminal record, certain serious communicable illness, have been refused admission into, or have been deported from, the United States, or have previously overstayed under the terms of the Visa Waiver Program, attempt to travel visa free under the Visa Waiver Program. The Rehabilitation of Offenders Act does not apply to US visa law and spent convictions,regardless of when they occurred will have a bearing on a traveler’s eligibility for admission into the United States.
In 2017, with respect to US nationals, the USA and the UK entered into an agreement to “improve information sharing”. The memorandum of understanding between the USA Federal Bureau of Investigation (FBI) and the UK ACRO Criminal Records Office means that ACRO will send the FBI details of USA nationals convicted in the UK and vice versa; both organisations will respond to requests about either countries’ nationals who have criminal records in the USA or the UK.
If you are planning on staying long term in the US you will need to go through the formal visa application process. As part of the visa application process you will usually be asked to provide a police certificate issued by ACRO.
A police certificate will display any “unspent” criminal records (cautions and convictions). If your records are “spent” your certificate will state “no live trace”.
A “no live trace” record will tell the US authorities that you have at some point in time received either a caution or conviction.
If however you have only ever simply been arrested, and no caution or conviction was resulted, your police certificate should state “no trace”. Your arrest will nevertheless still be recorded on the PNC and will be potentially disclosed if a “legitimate request” is made to the UK authorities.
Police Certificates and deletion of Police Cautions
If you have a police caution on your PNC record, or an arrest record, and you are worried about its impact on immigration to the United States of America, or any other country, then please get in touch.
If your case is related to immigration to the United States of America, we have excellent links with attorneys based in New York, and will often strategise a case in coordination with an immigration application.
We have successfully applied for the expungement of many police cautions, and other police records, in the past.
Once a caution is expunged from the PNC, the related police certificate will return a “no trace” outcome.
Please get in touch to arrange an initial consultation if you have any police record or DBS related issue.