If you are an innocent who happened to have been arrested in England or Wales, you're unlikely to be able to go to the United States of America, ever again. Retention of DNA is not the only long term effect of an arrest. Having been arrested also disqualifies one from the Visa Waiver Program (VWP). The alternative is attempting to obtain a visa to enter the USA, a long and costly process with an uncertain outcome.
Not being able to travel to the USA may, of course, affect job prospects. There's very little chance of redress about this consequence of an arrest as responsibility is shared by the English police force that made the arrest, Parliament that passed the laws giving police the powers to do the arrest (if the arrest was lawful), and the U.S. Department of State who is responsible for visa rules for travel to the USA.
The practicalities of attempting to travel to the USA from the UK is described on the website of the London Embassy in the Additional Administrative Processing : Criminal Convictions page of its Nonimmigrant Visas section:
Under United States visa law, people who have been arrested at anytime are required to declare the arrest when applying for a visa. If the arrest resulted in a conviction, the individual may be permanently ineligible to receive a visa. In order to travel, a waiver of the permanent ineligibility is required. The Rehabilitation of Offenders Act does not apply to United States visa law. Therefore, even travelers with a spent conviction are required to declare the arrest and/or conviction. [emphasis added]
The introductory sentence in the paragraph above, the first paragraph on the page, clearly shows the need for arrestees to apply for a visa. An initial essential step, for those willing to start this quest, is to obtain and 'furnish a police certificate from the Association of Chief Police Officers (ACPO) issued within 6 months of the date of the visa interview.' Until a few years ago, one was required to get a copy of his or her Police National Computer (PNC) record by submitting a data subject access request to the National Identification Service at New Scotland Yard. In 2008, this changed and one must now obtain a certificate from the ACPO Records Office. You can read more about this change in the post ACPO police certificates coming out of nowhere required for those going somewhere.
Another requirement, before being able to schedule an appointment with a U.S. consular officer, is to fill in the Nonimmigrant Visa Application form (DS156). Box 38 on this form is upfront about the limited chance of getting a visa:
38. IMPORTANT: ALL APPLICANTS MUST READ AND CHECK THE APPROPRIATE BOX FOR EACH ITEM.
A visa may not be issued to persons who are within specific categories defined by law as inadmissible to the United States (except when a waiver is obtained in advance). Is any of the following applicable to you?
- Have you ever been arrested or convicted for any offense or crime, even though subject of a pardon, amnesty or other similar legal action? Have you ever unlawfully distributed or sold a controlled substance(drug), or been a prostitute or procurer for prostitutes?
- Have you ever been refused admission to the U.S., or been the subject of a deportation hearing or sought to obtain or assist others to obtain a visa, entry into the U.S., or any other U.S. immigration benefit by fraud or willful misrepresentation or other unlawful means? Have you attended a U.S. public elementary school on student (F) status or a public secondary school after November 30, 1996 without reimbursing the school?
- Do you seek to enter the United States to engage in export control violations, subversive or terrorist activities, or any other unlawful purpose? Are you a member or representative of a terrorist organization as currently designated by the U.S. Secretary of State? Have you ever participated in persecutions directed by the Nazi government of Germany; or have you ever participated in genocide?
- Have you ever violated the terms of a U.S. visa, or been unlawfully present in, or deported from, the United States?
- Have you ever withheld custody of a U.S. citizen child outside the United States from a person granted legal custody by a U.S. court, voted in the United States in violation of any law or regulation, or renounced U.S. citizenship for the purpose of avoiding taxation?
- Have you ever been afflicted with a communicable disease of public health significance or a dangerous physical or mental disorder, or ever been a drug abuser or addict?
Yes No While a YES answer does not automatically signify ineligibility for a visa, if you answered YES you may be required to personally appear before a consular officer.
The Nonimmigrant Visas section page quoted earlier clarifies that 'may be required' should be read 'you are required':
Applying for the visa
You are required to schedule an appointment for an interview with a U.S. Consular Officer.
For those innocents unfortunate enough not only to have been arrested, but also to be male aged 16 to 45, the next hurdle is mastering their powers of recollection as they need to fill in the Supplemental Nonimmigrant Visa Application Form DS-157. This form includes questions such as 'List All Countries You have Entered in the Last Ten Years (Give the Year of Each Visit)', 'List all Professional, Social and Charitable Organizations to Which You Belong (Belonged) or Contribute (Contributed) or with Which You Work (Have Worked)' and 'List all educational institutions you attend or have attended. Include vocational institutions but not elementary schools.'
Once the police certificate is obtained (and paid for), all the forms completed, and a mugshot is in hand, it's time to pay the visa application fee and schedule an appointment. The timer for how long it takes to go through the whole process – whatever the outcome – starts at this stage. Processing of the visa application when box 38 is ticked is much longer. Detailed information about processing time is no longer published, but here's an excerpt from a page from the US Embassy website as it was in 2006:
Routine visa applications take approximately 5 workdays to process from the date of the visa interview. [...] Applicants who are advised at the visa interview that their application requires additional administrative processing should allow at least 60 days for this stage of the application to be completed. Applicants who tick yes to box 38 can expect to wait a minimum of 14 to 16 weeks before being advised of the outcome of their application. [emphasis added]
Current information on visa waiting time doesn't include any specific information for those who ticked yes in box 38, but has this vaguer note:
Typical Wait Time (Workdays**) for a Nonimmigrant Visa To Be Processed****: 4 Days [...]
****IMPORTANT NOTE: Processing wait time DOES NOT include the time required for administrative processing. These procedures require additional time. Most administrative processing is resolved within 60 days of application. When administrative processing is required, the timing will vary based on individual circumstances of each case. Therefore, before making inquiries about status of administrative processing, applicants or their representatives will need to wait at least 90 days from the date of interview or submission of supplemental documents, whichever is later. Processing wait time also does not include the time required to return the passport to applicants, by either courier services or the local mail system.
Fourteen weeks being 98 days, arrestees applying for a visa still likely have to wait 14 to 16 weeks. There's no guarantee that after all this time, a visa will be issued. The wording on the embassy's website strongly suggests that if you've been arrested, while you're welcome to apply for a visa, you're unlikely to be eligible.
Arrestees not only have to spend time but money as well, for the police certificate, for the non returnable fee to apply for the visa, the additional issuance fee in the eventuality of the visa being granted and for calling the US embassy (the only published phone number is a premium number). For someone who has been arrested the visa application process is complex and lengthy with at best a very uncertain outcome. An innocent who has never arrested benefits from the Visa Waiver Program while someone arrested but not convicted or for whom there was no further action has to answer yes to box 38 and face not being able to travel to the USA.
For those who went on the four or five months US visa quest and are among the lucky few found not to be ineligible, this is still not a guarantee of being admitted in the USA:
A visa is issued by a U.S. Embassy or Consulate. A visa entitles the holder to travel to the United States and apply for admission; it does not guarantee entry.
An immigration inspector at the port of entry determines the visa holder's eligibility for admission into the United States. [emphasis in the original]
While visas are issued by the US Embassies, admission into the US is administered by the Customs and Border Protection (CBP):
Also, If you are an alien, CBP Officers may decide that you should not be permitted to enter the United States. There are many reasons why this might happen (see INA § 212(a)). You will either be placed in detention, or temporarily held until return flight arrangements can be made. If you have a visa, it may be cancelled. [emphasis added]
For an innocent who's been arrested, following the legit option guarantees five months of nightmares, with a likelihood of not being allowed in the USA anyway. This has been an incentive for those who've been arrested – whether innocent or convicted – to forget their arrest, travel on the Visa Waiver Program, and lie when asked about any prior arrest. As CBP officers do not have access to the UK Police National Computer, many have travelled illegally without problem. However those tempted by this illegal route should bear in mind that it is possible that the USA compiles a database of public mentions of arrests and convictions from the press and/or court proceedings. It has also been reported for immigration officers to Google the name of travellers at the border, finding incriminating information against them and deciding to refuse them entry to the USA (read the stories of Andrew Feldmar and Hossein Derakshan for instance).
Home Office Minister Alan Campbell sees three distinct categories of people: those who are guilty, those who are convicted and those who are arrested but not convicted. The latter category is victim of extra-judicial punishments – e.g., DNA retention and disqualification from the VWP – affecting their privacy, and their job and travel prospects. The Home Office and U.S. Department of State's rejection of the presumption of innocence is making the cost of an arrest, lawful or not, very high for innocent people.
First published on 2010-01-29; last updated on 2014-08-25 to fix some broken links.
For the past two years or so I've been wearing a badge designed by Vivienne Westwood for the civil liberty organisation Liberty. On it is written in friendly letters ‘I am not a terrorist, please don't arrest me’. Liberty describes the writing as ‘a child-like scrawl plea’. It obviously works as I have not been arrested, or even stopped and searched, since I started wearing this badge.
The badge helps people realise that we must all adopt a rational attitude to the terrorist threats. We must promote measures that really do enhance our security and not security theatre measures that just inconvenience many innocents and do not make us any safer.
I have travelled abroad many times while wearing it. While waiting in security queues at airports I had the occasional positive response from fellow passengers. At Stansted Airport, early February, I had the first and so far only negative reaction to it. While I was waiting at the gate, by the counter, for an Easyjet flight to Copenhagen, a Swissport staff requested that I remove the badge which was pinned to my coat.
When I queried the staff why he was making such a request, he explained his motivation was that it might upset some passengers. I pointed out that the design of this badge is friendly and the message is non-threatening. I found his request upsetting and that his motivation was purely hypothetical as he hadn't heard from any concerned passenger. As he insisted, I complied with his request. This exchange was short and polite. At the bottom of the steps leading to the tarmac, he further discussed this incident with a colleague travelling with me adding that you have to be careful because some people are getting nervous about these things.
On board of the plane, my colleague opened The Times, and the headline on top of p.3, visible from several rows, was ‘Ryanair ordered to pay damages to steel band ‘terrorists’ thrown off jet’. Oh, the irony.
As no passenger has ever complained about this badge and I don't believe requesting me to remove it increases our security, back in London I contacted the General Manager for Swissport at Stansted to query the regulations covering Swissport staff's authority in requesting passenger to remove badges and other items of clothing. He investigated the incident and was very diligent in responding:
As all communications from passengers and customers are important to us, we do investigate all complaints or comments fully, and by the nature of our business this can take longer than perhaps I might prefer.
I have now had the opportunity to investigate the circumstances surrounding a member of Swissport staff asking you to remove your badge before boarding a flight at Stansted Airport.
Our business as a major provider of airport ground handling services around the world, works hard with our customer airlines and operators at airports where we work, to ensure aviation continues to be a safe and secure method of transport. The aviation industry is rightly well regulated and all businesses co-operate with the Department for Transport and the police services and security staff at the airports to meet these regulations. Additionally, we try and ensure that passengers are spared additional anxiety that they may feel as a result of enhanced security processes at the airports.
The badge which I understand you were wearing bears the message "I am not a terrorist. Please don't arrest me." Whilst it is unlikely that anybody could take exception to such a friendly and, presumably well-intentioned sentiment, our concerns were that the word "terrorist" was clearly the most prominent and could be read from a distance, while the context in which it was used could not.
Our request for the badge to be removed while you were preparing to board the flight and during the flight itself, followed consultation with the airline on which you were travelling, in particular the Captain and senior cabin crew member. We did not intend to cause you offence or to demonstrate support or rejection of the objectives of Liberty, the cause which I gather the badge supports. It was merely to spare other passengers any potential anxiety through the prominence of the word "terrorist" in what many would consider a security sensitive area. As part of legislative requirements, all airport staff are now required to undergo a greater degree of security awareness training and one of the supporting strains of this is to recognize and to act upon the “out of the ordinary”.
I hope that this provides some explanation of the reason for the action of our member of staff and I trust that this explains why you were asked to remove the badge on this occasion.
It is reassuring that airport staff benefit from additional security awareness training. This is exactly the type of measure that increases our safety.
Unfortunately some of the explanations still left me confused. Neither my colleague nor I noticed the Swissport staff having radio communications with the Easyjet Captain. We may have missed that as even though we were right by the counter we weren't paying particular attention to this. However, during the request to remove my badge, there was no mention of any consultation with the Captain. Sparing potential anxiety is of course something I fully subscribe to, but how come the word ‘terrorists’ when more prominent on a newspaper has not the same potential to create anxiety in a security sensitive area? Security measures, if efficient, should be applied consistently. Why singling my badge out?
I sent a further email requesting clarifications. Here's the concluding email:
Thank you for your further correspondence, and my apologies for a tardy reply. I have been dealing with a large redundancy issue which as I hope you can appreciate is very time consuming.
Our dispatchers are responsible for ensuring the boarding process is safe and timely and, as such, liaise with a number of personnel during the time the aircraft is on the ground. It is likely you would not have been aware of all of these discussions, some of which will have been made by radio or telephone from our Operations office, and there was no need for the dispatcher to explain them to you at the time.
Whilst I can understand your frustration, I am satisfied that in the light of the circumstances on the day as they were explained to me, the dispatcher made the right decision in asking you to remove the badge in question. The dispatcher was the senior member of our staff on duty at the time and, as such, I support his decision and am grateful to you for complying with it.
I have not received the Swissport's regulations covering Swissport staff's authority in requesting passenger to remove badges and other items of clothing
Some countries require Police record information as part of their immigration, visas, work permits and residency acceptance processes. This is the case for the USA: ‘Under United States visa law, people who have been arrested at anytime are required to declare the arrest when applying for a visa.’ This applies to all those that have been arrested even if never convicted.
The way to get details of your – blank or otherwise – police record is to make a subject access request using the Police National Computer (PNC) Form 3019B. This is a right given by the Data Protection Act 1998. The act stipulates that a reply must be received within 40 days as long as the necessary fee has been paid. The fee is decided by the relevant data controller up to a maximum of £10 and the Police do charge the maximum.
With very little fanfare, a trial has recently started in which four countries will no longer accepting PNC record extracts for their visa procedures. Instead you will need a police certificate:
The ACPO Criminal Records Office is piloting an initiative to provide Police Certificates for Visa purposes. The four countries involved in the pilot are Australia, Canada, New Zealand and the United States of America.
There's no press release from the Association of Chief Police Officers (ACPO) I could find. Searching the Hansard (or They work for you) does not bring any result so this doesn't appear to have been debated in Parliament at all. Nothing either on the websites of the Foreign & Commonwealth Office, Department for Transport, the Home Office or the Ministry of Justice (sponsor of the Information Commissioner's Office). The new form on the ACPO site does not include any issuance date, but the document properties reveal that it was created by the Hampshire Constabulary on 2008-01-15. The US Embassy is requiring new visa applicants to furnish a new style police certificate from the ACPO and those that have already applied for a PNC data subject access have only until 2008-08-15 to appear for interview. For a trial, it looks rather definitive. The websites of the Australian, Canadian, New Zealand embassies do not appear to have been updated yet to reflect the changes (with the Citizenship and Immigration Canada website even including out of date URLs to the Metropolitan Police Service website).
Here's a summary of the differences:
|PNC data subject access||ACPO police certificate|
|Provides||‘[I]nformation that may be held about you on the Police National Computer’||Unclear
The form states: ‘ACRO will carry out extensive authentication exercises including searching various databases.’
|Validity||12 months||6 months|
|Cost||£10 paid to the local police force|
|Processing time||Within 40 days (Data Protection Act requirement)||Aimed to be within 10 working days (2 working days for the premium service)|
|Requirements||Proof of identity (returned), fee and form 3019B (less than a page)||Proof of identity (retained), photograph, fee and Police Certificate Application Form (two pages)
Declaration and photograph to be countersigned by a guarantor
|Who handles the requests||National Indentification Service (NIS)
All data subject access requests are under the authority of the Information Commissioner's Office
|ACPO Criminal Records Office (ACRO)|
These new police certificates appear to work outside the constraints of any law and any debate, they are entirely governed by the ACPO and the agreements it made with several embassies. The list of database queried is not known and what will be communicated is not yet known either (someone who has gone through the process may detail what the result reveals). The fee has more than tripled. The only positive is that it is speedier, but even that is not guaranteed: ‘ACRO will aim to produce all police certificates (standard service) within 10 working days.’
And the ACPO is most likely free to change any aspect of this scheme as it chooses.
Why introducing a paralegal process when there's already one in place that seems to do the job? If the PNC data subject access process was not adequate for visa requirements of some countries then this should be explained, debated by Parliament and put under the authority of the Information Commissioner's Office.
First published on 2008-02-24; last updated on 2013-07-11 to fix some broken links.
‘Additional personal information sought as a direct result of PNR data will be obtained from sources outside the government only through lawful channels, including through the use of mutual legal assistance channels where appropriate, and only for the purposes set forth in paragraph 3 hereof. For example, if a credit card number is listed in a PNR, transaction information linked to that account may be sought, pursuant to lawful process, such as a subpoena issued by a grand jury or a court order, or as otherwise authorized by law. In addition, access to records related to e-mail accounts derived from a PNR will follow U.S. statutory requirements for subpoenas, court orders, warrants, and other processes as authorized by law, depending on the type of information being sought;’And here's the list of ‘PNR data elements required by CBP from air carriers’:
This document is dated from May 2004; ‘these Undertakings shall apply for a term of three years and six months (3.5 years), beginning on the date upon which an agreement enters into force between the United States and the European Community’.
- PNR record locator code
- Date of reservation
- Date(s) of intended travel
- Other names on PNR
- All forms of payment information
- Billing address
- Contact telephone numbers
- All travel itinerary for specific PNR
- Frequent flyer information (limited to miles flown and address(es))
- Travel agency
- Travel agent
- Code share PNR information
- Travel status of passenger
- Split/Divided PNR information
- Email address
- Ticketing field information
- General remarks
- Ticket number
- Seat number
- Date of ticket issuance
- No show history
- Bag tag numbers
- Go show information
- OSI information
- SSI/SSR information
- Received from information
- All historical changes to the PNR
- Number of travelers on PNR
- Seat information
- One-way tickets
- Any collected APIS information
- ATFQ fields
Advice for border guards when conducting the border check:
- when you take the travel document always have a look at the face of the traveller at first (try to remember as much as possible of the noticeable features of the traveller's face);
- compare the features of the traveller with the photo and description included in the travel document, match them also with the visa when this is required (this could help to eliminate impostors);
- check the travel document through in order to rule out the possibility that it is counterfeit or forged (the numbering, printing and stitching of pages, seals and stamps inserted, the inclusion of other persons; all corrections made in the document especially at the personal data page should be clarified by the traveller);
- check the data in the file system; while doing this keep always verbal contact and observe the behaviour and reaction of the traveller (e.g., nervousness, an aggressive attitude, excessive willingness to co-operate);
- before you put the border's stamp make sure that the person did not overstay the allowed period during his/her last stay within the Schengen States territory (i.e. 3 months within six months[)];
- do not interrogate the traveller as a potential criminal or illegal immigrant. All the questions should be well balanced and asked in a friendly way.
- questions posed by the traveller should not be considered as intrusive and should be answered in a factual and polite manner.
‘[...] he felt compelled to speak out to protect other innocent travellers from a similar experience.
"This man could have garrotted me and what was awful was that one or two of the passengers went up afterwards to thank him," said Mr Stein. He has since been told by airline staff he was targeted because he was using an iPod, had used the toilet when he got on the plane and that his tan made him appear "Arab". [...]’
"The attendant actually recognized out loud that he wasn't a Muslim and that she was sorry for the situation but they had to ask him to leave,"