UK Beneficiary criminal record

[EnglishLove 112]

7 minutes ago, mindthegap said:

Unless he entered via a land border, or via pre-clearance from Canada or Mexico, he would have needed an ESTA.

 

Even ignoring the juvenile ones, based on the information you have posted about his adult history, he is not admissable - either under the VWP or as an immigrant, without a waiver of inadmissibility.

 

 

 

Really? I wouldn't had thought that. Put I've got so many different answers from people and websites I'm more confused now than when I started lol.

[Boiler 45,360]

Obviously details matter but the responses you have received bearing in mind the confusion of the situation have been reasonably consistent.

[geowrian 22,337]

Given a number of very recent posts on the subject of criminal offenses for non-immigrant visas (or ESTAs), I really wish they would make providing a police certificate a requirement for those cases.

6 hours ago, John & Rose said:

A refused K-1 with the petition being sent back will sit and die.

A refused CR-1/IR-1 with the petition being sent back can be reaffirmed and not refused again for the same reason if based upon the same evidence.

True, although the OP's issue(s) wouldn't be related to anything with the petition.

 

6 hours ago, Pooley said:

Why would anyone not take a caution over being arrested and brought to court?

If one was innocent, I wouldn't be surprised if they refused to take a caution.

[mindthegap 2,589]

22 minutes ago, Pooley said:

Really? I wouldn't had thought that. Put I've got so many different answers from people and websites I'm more confused now than when I started lol.

Post back what specific offences and bands he was convicted and cautioned for, and I will give you a detailed answer. If this info isn't on the ACRO then it will definitely be on his subject access report - which if he doesn't have right now, he will 100% need at a later date for this.

 

 It is all to do with the maximum possible sentence for that offence - not the sentence given.

 

 

[EnglishLove 112]

1 minute ago, mindthegap said:

Post back what specific offences and bands he was convicted and cautioned for, and I will give you a detailed answer. If this info isn't on the ACRO then it will definitely be on his subject access report - which if he doesn't have right now, he will 100% need at a later date for this.

 

 It is all to do with the maximum possible sentence for that offence - not the sentence given.

 

 

Okay. I'm honestly only worried about his caution for the Handling Stolen Goods (receiving). I've read website after website and that's the most concerning one. It says it's a CMIT if it was knowingly done which his wasn't. He had literally just bought it after saving up for one for a while and had no idea. So I guess that's the one I have questions about. 

[Lemonslice 4,798]

11 minutes ago, Pooley said:

Okay. I'm honestly only worried about his caution for the Handling Stolen Goods (receiving). I've read website after website and that's the most concerning one. It says it's a CMIT if it was knowingly done which his wasn't. He had literally just bought it after saving up for one for a while and had no idea. So I guess that's the one I have questions about. 

You might only be worried about one caution, but they'll review everything. Please come back when you receive his SAR.

[EnglishLove 112]

1 minute ago, Lemonslice said:

You might only be worried about one caution, but they'll review everything. Please come back when you receive his SAR.

I've already ordered that and i currently have it. It says the same exact thing the police certificate says. Gives the date, the charge, and the disposal which was a caution. SAR says the same thing, just has his prior address and such with it. 

[thatguyuknow 147]

7 hours ago, Pooley said:

I've already ordered that and i currently have it.

Sounds like @mindthegap knows what they're talking about. I would do as he/she asks and list a clear breakdown of his history including type/details of the offence, date found guilty and age at time of offence.

 

I know that everything should be taken from the SAR as the police certificate will have less details and may not include all history.

 

I know its also true that if you have been convicted of multiple crimes (anything over 1 and even if they don't involve moral turpitude) and the combined maximum potential sentence is 5 years incarceration then that makes you inadmissible.

 

If you don't feel comfortable including details on the public forum maybe you should private message @mindthegap

 

[mindthegap 2,589]

1 hour ago, thatguyuknow said:

I know its also true that if you have been convicted of multiple crimes (anything over 1 and even if they don't involve moral turpitude) and the combined maximum potential sentence is 5 years incarceration then that makes you inadmissible.

Correct. I did post a link to 212(2)(A) earlier but not sure if it was noticed...

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

(2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement ² were 5 years or more is inadmissible.

 

 

People get so hung up on the moral turpitude headline, when that is far from the be-all and end-all of it. Petty offence exception? Depends on max sentence.

Multiple crimes? Depends on max sentence....

 And then to confuse you even further, crimes in the UK have different sentences depending on what level they are....for example, the maximum sentence for handling stolen goods is 14 years at the highest offence level (page 15 here if you want to see for yourself: https://www.sentencingcouncil.org.uk/wp-content/uploads/SC-Theft-Offences-Definitive-Guideline-content_FINAL-web_.pdf )

The devil is in the detail.

 

That he has five offences - three for assault, one for a knife, and one theft related - isn't great. The consular officer may look at it and see a repeated pattern of an offender that hasn't learned from their mistakes, especially given the relatively recent offences.

 

To answer your original question:

9 hours ago, Pooley said:

My question is, during the interview process, will they let him explain what happened or just look at it and automatically deny? Should I write something up explaining the situation so they are able to reflect back on it once he leaves the interview? I guess I'm hoping for input from filers in the UK that have had similar situations. 

Ultimately they do not care what happened, as he admitted the offence - which to accept a caution in the UK, you MUST do, without exception. The verbal explanation, and paperwork that you must sign, is explicit in this regard.

 

Please don't think I'm busting your balls, I'm not.  Just giving my honest appraisal of the situation you find yourself in. But hey, none of us have done this journey because it is easy, right?

 

Edited January 29, 2019 by mindthegap

[EnglishLove 112]

2 hours ago, mindthegap said:

Correct. I did post a link to 212(2)(A) earlier but not sure if it was noticed...

https://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-29/0-0-0-2006.html

(2) Criminal and related grounds.-

(A) Conviction of certain crimes.-

(i) In general.-Except as provided in clause (ii), any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of-

(I) a crime involving moral turpitude (other than a purely political offense) or an attempt or conspiracy to commit such a crime, or

(II) a violation of (or a conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)), is inadmissible.

(ii) Exception.-Clause (i)(I) shall not apply to an alien who committed only one crime if-

(I) the crime was committed when the alien was under 18 years of age, and the crime was committed (and the alien released from any confinement to a prison or correctional institution imposed for the crime) more than 5 years before the date of application for a visa or other documentation and the date of application for admission to the United States, or

(II) the maximum penalty possible for the crime of which the alien was convicted (or which the alien admits having committed or of which the acts that the alien admits having committed constituted the essential elements) did not exceed imprisonment for one year and, if the alien was convicted of such crime, the alien was not sentenced to a term of imprisonment in excess of 6 months (regardless of the extent to which the sentence was ultimately executed).

(B) Multiple criminal convictions.-Any alien convicted of 2 or more offenses (other than purely political offenses), regardless of whether the conviction was in a single trial or whether the offenses arose from a single scheme of misconduct and regardless of whether the offenses involved moral turpitude, for which the aggregate sentences to confinement ² were 5 years or more is inadmissible.

 

 

People get so hung up on the moral turpitude headline, when that is far from the be-all and end-all of it. Petty offence exception? Depends on max sentence.

Multiple crimes? Depends on max sentence....

 And then to confuse you even further, crimes in the UK have different sentences depending on what level they are....for example, the maximum sentence for handling stolen goods is 14 years at the highest offence level (page 15 here if you want to see for yourself: https://www.sentencingcouncil.org.uk/wp-content/uploads/SC-Theft-Offences-Definitive-Guideline-content_FINAL-web_.pdf )

The devil is in the detail.

 

That he has five offences - three for assault, one for a knife, and one theft related - isn't great. The consular officer may look at it and see a repeated pattern of an offender that hasn't learned from their mistakes, especially given the relatively recent offences.

 

To answer your original question:

Ultimately they do not care what happened, as he admitted the offence - which to accept a caution in the UK, you MUST do, without exception. The verbal explanation, and paperwork that you must sign, is explicit in this regard.

 

Please don't think I'm busting your balls, I'm not.  Just giving my honest appraisal of the situation you find yourself in. But hey, none of us have done this journey because it is easy, right?

 

Thank you so much for all your help!

[EnglishLove 112]

People get so hung up on the moral turpitude headline, when that is far from the be-all and end-all of it. Petty offence exception? Depends on max sentence.

Multiple crimes? Depends on max sentence....

 

I looked up his and they said community order (not sure what exactly that means?) and all 6 months max sentence. The common assaults all said fines if they went to court?  Not sure how that will work or if they will look that up. But thank you very much for all your help, it's greatly appreciated!   

[Limey 551]

20 hours ago, Pooley said:

If you're pulled over for speeding and admit to the officer you knew you were speeding and they let you off with a warning.. how is that different? They didn't arrest him or give him a ticket. 

I haven't read the entire thread, so apologies if someone has already explained this... in England and Wales a police caution is used for more minor offences where the criminal admits their guilt.

 

Its similar to turning up to court and pleading guilty, but without the cost of judges, lawyers etc. Normally the caution will have been issued at the police station, and the criminal would have had access to a solicitor (ie legal advice).

 

https://en.wikipedia.org/wiki/Police_caution

 

If you read the above you'll note that one of the purposes of the formal caution is

 

" to record an individual's criminal conduct for possible reference in future criminal proceedings or in criminal record or other similar checks; "

 

So don't be misled by the term - a caution isn't just a warning not to do something again, its essentially a guilty plea, but with no punishment attached, but it will form part of the criminal record.

 

I passed the equivalent of US bar exams in England/Wales 20 years ago but never practised in England, but I'm pretty sure not much has changed with regards to the status of a police caution since I studied this.

[EnglishLove 112]

3 minutes ago, Limey said:

I haven't read the entire thread, so apologies if someone has already explained this... in England and Wales a police caution is used for more minor offences where the criminal admits their guilt.

 

Its similar to turning up to court and pleading guilty, but without the cost of judges, lawyers etc. Normally the caution will have been issued at the police station, and the criminal would have had access to a solicitor (ie legal advice).

 

https://en.wikipedia.org/wiki/Police_caution

 

If you read the above you'll note that one of the purposes of the formal caution is

 

" to record an individual's criminal conduct for possible reference in future criminal proceedings or in criminal record or other similar checks; "

 

So don't be misled by the term - a caution isn't just a warning not to do something again, its essentially a guilty plea, but with no punishment attached, but it will form part of the criminal record.

 

I passed the equivalent of US bar exams in England/Wales 20 years ago but never practised in England, but I'm pretty sure not much has changed with regards to the status of a police caution since I studied this.

Hello,

 Thank you for replying! I understand it is essentially pleading guilty (I was simply stating how I felt on the topic since the law works different in the US) He doesn't deny the Simple Assault's when he was fighting. The last caution that could cause us issues, he said that cop told him that since he told him he was the one that purchased it, was getting cautioned, however he had no knowledge it was stolen. He said he signed nothing and it was all verbal. 

[Limey 551]

13 minutes ago, Pooley said:

Hello,

 Thank you for replying! I understand it is essentially pleading guilty (I was simply stating how I felt on the topic since the law works different in the US) He doesn't deny the Simple Assault's when he was fighting. The last caution that could cause us issues, he said that cop told him that since he told him he was the one that purchased it, was getting cautioned, however he had no knowledge it was stolen. He said he signed nothing and it was all verbal. 

Formal cautions of the type that go on a criminal record would normally be in writing. If he didn't sign anything then its unlikely that it was a formal caution.

 

To avoid try to avoid confusion... there is a difference between the caution "you do not have to say anything, but ..." etc (note the one in the UK is now quite different to the US right) and a formal caution for an offense. They are completely different things - its unfortunate that they both use the term caution.

 

So if I'm arrested on suspicion of handling stolen goods, and the police "caution" me by saying "You do not have to say anything, but if you fail to mention when questioned..." etc then that isn't a formal caution, and won't go on my criminal record. However if you admit guilt and accept a caution (usually offered as an alternative to going to trial), then that will form part of your criminal record.

 

Also note that the US immigration process asks about arrests. So in the above case, you'd still need to admit to being arrested on suspicion of handling stolen goods, even if you weren't charged and didn't accept a formal caution.

 

I don't know too much about how the process for waivers works, but I would say

- 4 or 5 offenses is quite a few, and they are relatively serious as some involve violence, and carrying a weapon is also quite serious in England. It may be easier to get a pass for minor drug possession or DUI than for these sorts of crimes.
- much will depend on how long ago these offenses were, obviously if you can show no offending for eg 10 years or more, then a waiver is more likely than if they were only 5 years ago.

Let the forum know how you get on either way, as these types of posts are useful for others in the future.

Edited January 29, 2019 by Limey

[mindthegap 2,589]

19 minutes ago, Pooley said:

The last caution that could cause us issues, he said that cop told him that since he told him he was the one that purchased it, was getting cautioned, however he had no knowledge it was stolen. He said he signed nothing and it was all verbal. 

And that one showed up on his ACRO and SAR?

No way is that an official caution without signing for it - I unfortunately know from my own experience of accepting one (albeit a couple of decades ago and in hindsight solely due to questionable legal advice, but hey ho..), and it has changed again since in iirc late 2013 to clarify that the consequences MUST be outlined and the offender sign:

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/708595/cautions-guidance-2015.pdf

 

https://www.cps.gov.uk/legal-guidance/cautioning-and-diversion

 

 

 

[Edited to correct links]

 

 

Edited January 29, 2019 by mindthegap