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Esta - and non existent/existent criminal record.

Esta - and non existent/existent criminal record.

Old Sep 12th 2019, 6:38 pm
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Default Esta - and non existent/existent criminal record.

Hi there, first post on the forum for this country - just trying to get my head round something and unsure on how i should answer the ESTA visa waiver.

In my youth i was a arrested a couple of times - once for something which i did, but i would argue doesn't constitute a crime. and another which i didn't do.

I received a reprimand at the age of 15 for criminal damage- this was infact some pedal bike tracks on a bit of waste land that had a legal right of way on it and came about due to police overreaction and some other issues, it made the front page of our local paper 2 days in a row, and on solictors advice i took a reprimand on the understanding that it would disappear off my record at 18.

I was then arrested for a very serious crime in early 20's - classed as against a person. it was established this crime never took place and i was released without charge and NFA.

For years i have assumed i was inadmissible under the visa waiver program and that was life. however in an effort to emigrate to another country, i applied successfully to the UK police to have both records expunged as the first one hadn't been handled as promised, no crime was actually committed and i would never have accepted the reprimand if i knew it had been dealt with and then stepped down. and the second one as there was no crime committed the arrest was wrongful. if i apply for a police cert i have now move from "no live trace " to " no trace" and my SAR comes back with nothing on it.

Given the question for the ESTA is

"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?"

I think the first one was a no regardless, but now doesn't exist and the second one - questionably I wasn't arrested for a crime that resulted in anything, as it didn't take place, and the record of my arrest no longer exists and has been removed from the UK PNC due to their being no crime committed.

Is the truthful answer to the question yes or no?

For what its worth, i'm not trying to deceive the US government, have no immediate plans to travel there - but had resigned myself to the fact that i could never visit the US by air without going down to the embassy due to my arrests, even though i have never been convicted - that was life and i accepted it(I've missed friends weddings, family holidays etc due to it) but am now wondering if potentially i could be eligible for ESTA.

Last edited by Stumpylegs; Sep 12th 2019 at 6:40 pm. Reason: spelling
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Old Sep 12th 2019, 6:50 pm
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Default Re: Esta - and non existent/existent criminal record.

Since you have, in fact, been arrested for a crime that, by your own admission was 'very serious' and 'against a person' (which sounds like a possible domestic violence arrest?) I don't see how you can possibly tick no, expunged or otherwise.
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Old Sep 12th 2019, 7:28 pm
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Default Re: Esta - and non existent/existent criminal record.

Originally Posted by civilservant View Post
Since you have, in fact, been arrested for a crime that, by your own admission was 'very serious' and 'against a person' (which sounds like a possible domestic violence arrest?) I don't see how you can possibly tick no, expunged or otherwise.
Aye, and that was my take on it for years (it wasn't domestic violence btw) and i had just assumed it, but then as i was discussing about how i now had no criminal record whatsoever or even an arrest record as it had been removed someone mentioned it to me . i have gone to read the the application page - and read

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?

So this crime didn't result in any damage or harm - as it didn't exist, not that i wasn't guilty of it, or it couldn't be proved, or it may or may not have been me so didn't result in a conviction, but that the crime never even occurred and was nothing more than a story.

To put it into context and stop the wondering ( i wasn't going to share this lot, as the case details make little relevance to whether i can use the VWP or not), me and a couple of friends where sat at a friends house one night, police rock up and arrest my friend for attempted murder, about 3 minutes later they then arrest the rest of us for the same crime.

Transpires someone made an allegation my friend had turned up at their house, threatened to kill them and that they had a gun with them at the time (I live in the country from a farming background so shotguns/air rifles etc aren't uncommon) - I never really understood how this claim constituted attempted murder (and technically even if had occurred, no one was harmed in a physical sense) but to cut a long story short, my friend had several people that could verify his whereabouts when the victim had said this had happened, after several months on bail pending investigation the "victim" withdrew his statement and explained he had fabricated the whole thing, we all attended the police station once more, all of us where told the victim had withdrew his statement and there was NFA.

Under the old wording it was have you been arrested for a crime of moral turpitude which i definitely have - and unless the US recognise the fact that the uk deleted my arrest i wouldn't be able to use VWP, but this new wording is possibly more wooly/in my favour

Last edited by Stumpylegs; Sep 12th 2019 at 7:29 pm. Reason: n/a
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Old Sep 12th 2019, 7:32 pm
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Default Re: Esta - and non existent/existent criminal record.

The will recognize that something was expunged - it happens all the time here. I still don't see how you can avoid the yes.

It only means you need to apply for a B2, and, while inconvenient, it will result in the issuance of a visa because you didn't actually commit a crime.
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Old Sep 12th 2019, 7:37 pm
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Default Re: Esta - and non existent/existent criminal record.

Originally Posted by civilservant View Post
The will recognize that something was expunged - it happens all the time here. I still don't see how you can avoid the yes.

It only means you need to apply for a B2, and, while inconvenient, it will result in the issuance of a visa because you didn't actually commit a crime.
Fair enough - in UK Law it means i don't have to declare the arrest on any forms - so wasn't sure if it was the same over there, and as stated I've currently got no travel plans or the like.

If the need arises i have been more than willing to apply for a B2 visa and i know people that have done it, and whilst its been awkward it hasn't been unachievable its more that it rules me out from being able to just pick a random holiday out of a travel agent window and book it knowing I've got an ESTA.
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Old Sep 12th 2019, 8:54 pm
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Default Re: Esta - and non existent/existent criminal record.

Originally Posted by Stumpylegs View Post
Under the old wording it was have you been arrested for a crime of moral turpitude which i definitely have - and unless the US recognise the fact that the uk deleted my arrest i wouldn't be able to use VWP, but this new wording is possibly more wooly/in my favour
The new wording still refers to crimes involving moral turpitude, so as civilservant has already pointed out, your answer is yes to this question on ESTA.
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Old Sep 13th 2019, 2:57 am
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Default Re: Esta - and non existent/existent criminal record.

ESTA is good for 2 years, a B is usally good for 10.

US Laws apply not UK.
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Old Sep 13th 2019, 9:18 am
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Default Re: Esta - and non existent/existent criminal record.

If you were planning on travelling to Canada then how would you answer their question on the eTA application form which is

Have you ever committed, been arrested for, been charged with or convicted of any criminal offence in any country/ territory?

Agreed the wording is somewhat different but how would you answer it?
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Old Sep 13th 2019, 10:27 pm
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Default Re: Esta - and non existent/existent criminal record.

I agree that technically the answer is yes, but in all honesty the outcome for you is fairly decent. Answer yes, and you'll probably get a 10 year, multi entry B-2 which allows stays of up to 6 months after an interview at the Embassy. That's significantly more flexibility than the ESTA. Fine, it'll cost you a few quid and a day off work, but I wouldn't turn your nose up on this one.
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