Do I need a visa or not ?

[cruze72]

I'm erring on the side of caution where the London US embassy advises that if you have been arrested, you MUST apply for a visa whether charged or not.

I have exhaustively checked several US embassy websites and various US government sites and cannot find other evidence to the contrary.

Almost all references are ambiguous in their terminology but suggest charge or conviction only.

I am wondering if this is typical British scaremongering and that i should be OK. It sure will save me time, effort and money by just saying NO.

I'm certainly not planning on moving, working or living in the US at any point in the future anyway!

[Marco 72]

The US embassy visa wizard asks

Have you ever been arrested or convicted for any reason in any country, even if the arrest did not lead to a conviction, or do you have a criminal record?

If you answer "yes", you are asked

Is the full extent of your history of legal violations limited solely to minor traffic offenses that did not result in your arrest and/or conviction?

If you answer "no", you are told

You are not eligible to travel on the Visa Waiver Program, and must possess a valid visa for entry into the United States.

This doesn't sound very ambiguous to me. What is stupid in my opinion is that people are not asked these questions when they book a flight, but only when they are already on the plane. Then they can choose between either telling a little lie and getting away with it (at least for the time being) or being honest and possibly being deported like a criminal.

[cruze72]

When i mentioned the word ambiguous, i was referring to the different US embassy websites ...... i have also followed the visa wizard on the british US embassy website and fully understand what is said as in "you are not eligible ....." but the ambiguity is as follows ...... this is from the Swedish US embassy website ( where i will be applying if i do need to get a visa )

Quote:

"SUMMARY

You DO NOT NEED a visa if:

* You are a citizen of Sweden and you have a Swedish passport
and
* Your passport is machine-readable.
and
* You have never been charged with or convicted of a crime in any country.
and
* You have never been denied a U.S. visa.
and
* You have never been deported from or denied entry into the U.S.
and
* You are going for 90 days or less for business or pleasure.

You DO NEED a visa if:

* You have a handwritten passport.
or
* You are not a citizen of a Visa Waiver country or Canada.
or
* You previously have been refused a U.S. visa.
or
* You have been deported from or denied entry into the U.S.
or
* You are going for a purpose other than business or pleasure.
or
* You are planning to stay for more than 90 days.
or
* You are entering the U.S. by private craft, such as boat or private plane.
or
* You have been charged with or convicted of a crime in any country.

I also totally agree that in today's age, it is pointless to ask these questions and fill out the silly little form on the aeroplane ........ this is also partly the airlines fault. you would think that they would get their act together as they are fined $3000 every time someone is refused entry ...... duh!

[erik V]

you can use the vwp because you are not convicted, a simple arrest doesn't proof a thing.

However, immigration is allowed to ask such questions and you are deemed to answer them correctly. They will ask some questions and do some more checking, that's all.

Note that immigration services uses a computer program to assess your risk-profile. A risk-profile too high will not get you in. The program takes a lot into account, including information obtained from other governments. You don't have access to your personal risk score.

[cruze72]

Erik,

many thanks for the info .........

[SYH]

Cruze
You were arrested once you required to go into policy custody, meaning you did not have a choice but to go to the police station. If you had a choice in the matter and could have arranged to come in on your own convenience, then you weren't arrested.
Unfortunately, based on the fact that they charged you, it indicates to me you were arrested, although you later say you were never charged so it seems to me you don't know whehter you were charged or not?
These application try to define within it in its guidance their definition of arrest so I suggest you look it up and apply their definition of arrest to answer the question

[cruze72]

SYH, Just to clarify, i was never charged with anything ....... my very first post had a typo in it - sorry for the confusion.

[erik V]

As far as I know and I'm not an expert in British criminal law.

In Britain the police can arrest you and then they have 48 (?) hours to charge you or they have to let you go. If they don't charge you then they don't accuse you of anything.

In other countries, the police has the right to deprive you from your freedom (for less than 24 hours) to fulfill administrative formalities ("administrative arrest"). This happens if they have good reasons to assume you are a danger for yourself, you would commit a crime or have committed a crime (pending investigation). Some of my friends are administrative arrested because they had bought eggs (they did buy those eggs minutes after eggs where thrown to the police as some student gathering, obviously no crime was committed).

In the USA the police can only arrest you if they tell you for which crime you are suspected (not questioned). The US immigration forms use this definition of an arrest. So even when you are forced to come to the Police station, and even if you are locked up for a few hours, but they have not said that you are a suspect you are not "arrested" in the meaning of the word of an US immigration officer.

[SYH]

The US forms use what definition?
Is it spelled out on the forms, if so, please write them on the forum verbatim?
Back to being arrested, cruze, so far, you were still arrested if you had no choice but to go with the police.
In the usa, the failure to tell you what criime you are suspected of, doesn't mean you can't or you weren't arrested. It is just something that can be used in terms of admitting evidence and or dismissing the charge.

[erik V]

I feel challenged, that's OK but now we are going into technicalities of the law.

The USA are not bound by the definition of the word "arrest" as used by other countries. The USA are a soveriegn country and they use there own definition of the word "arrest". In the USA (and the american society in general) an arrest means a lawful arrest. (unless otherwise stated).

In the USA a lawfull arrest is only possible if:
- there is a court warrant (in the possision of the arresting officer, or the officer has good reasons to assume such a warrant exists). A court order has to mention for which crimes you are accused/suspected.
- you committed or atempt to commit to make a crime in the presence of the arresting officer. It should be clear which crime is committed.
- the officer has reasonable ground to believe you commited a crime yourself. Unless it's clear by the circumstances, the arresting officer has to inform you which crime he believes you have committed.

An arrest made to allow an investigation to take place is not an arrest in the eyes of the United States of America.

[SYH]

This is the definition that is on the application form?
Or is this what you googled onwikipedia?

[cruze72]

SYH, when the police came to our offices ... they arrested their prime suspect, handcuffed him and bundled him off ...... they then came into my office and asked me to accompany them to the station. i was not arrested at this point. However, when i got to the station, they "arrested" me before putting me in a holding cell for 6 hours. After this i was questioned without caution for about 1 hour and then bailed for 28 days. The terms of bail were to telephone the police station after 14 days to get an update. At this time, they told me not to bother calling again as the they would not be questioning me again or charging me as the initial arrest had been a mistake and was only being eliminated from their enquiries at that time - certainly there was never an indication of a charge being made against me.

To me, having never been in trouble with the authorities before , it seemed rather slapdash and casual which is why i am raising the whole issue. i have no idea what constitutes a "proper" arrest. This also happened before 9/11 so would not have been an issue if i had travelled at the time of the incident.

I guess an arrest equals an arrest and thus following the letter of the law with the US immigration i should apply for my B1 visa instead of taking a chance.

However, it riles me to have to pay in the region of £130 (to apply for a visa and the necessary paperwork from the Police authority plus travel expenses to and from the US embassy ) not to mention having to wait up to 6 weeks if it is not necessary.

That is my predicament ........

As i mentioned earlier in my posts, i have asked for my police record under the freedom of infomation act as i see this as the first step to see what the police actually did do. Unfortunately, this could take up to 40 days .......

[SYH]

As you say, an arrest is an arrest
and in this case, you will have to apply for the B1 Visa.

[erik V]

Or is this what you googled onwikipedia?

I do have a law degree, but i do use google as well.

Out of the police Code of Practice (for British police officers).

3.2 The detainee must also be given:
• a written notice setting out:
..
– the right to a copy of the custody record
...
3.4 The custody officer shall:
• record the offence(s) that the detainee has been arrested for and the reason(s) for the arrest on the custody record.

The Code of Practices can be consulted on this government website
http://police.homeoffice.gov.uk/news-an ... iew=Binary

Question remains, if such a written notice is given then cruze72 was arrested, otherwise it wasn't. (note that if it was not given, at the very least he could he could state in good faith he was not arrested).

[erik V]

However, when i got to the station, they "arrested" me ... and then bailed for 28 days. The terms of bail were to telephone the police station after 14 days to get an update

Doesn't sound like an arrest to me, the police cannot bail you, only a judge can do that. Seems to me you are confusing an arrest/bail with a request to co-operate with an investigation.

[SYH]

If I was out on bail, he had to have been arrested.

Erik
I asked for how it was defined iin the application, not the definition under the law

[John]

the police cannot bail you, only a judge can do that.

I think you will find that the Police can bail you, and regularly do bail people!

It strikes me that there is unnecessary confusion about what exactly causes a person to require to obtain a visa, or not.

At 4.26.pm (UK time) yesterday mention was made of website www.usvisalawyers.co.uk and it was quoted. Are readers of this topic saying that such website is wrong? It uses the word "convicted" and clearly that has not happened.

[Marco 72]

If I was out on bail, he had to have been arrested.

Erik
I asked for how it was defined iin the application, not the definition under the law

Have a look for yourself. It takes approximately 10 seconds to find a copy of the visa waiver form using Google. The form doesn't give any definitions of arrest, otherwise we wouldn't be discussing this issue here.

[SYH]

Hey marco, thanks for the 10 second reference but I was trying to help. When I asked what was the definition on the application, I presumed someone had it handy, especially when erik responded so quickly. When I asked him to clarify if its from the application or not, he then said it was from a codebook. If there is no defintion, there is no definition, thanks for letting me know. However, there is no need for me to look it up.

[erik V]

I think you will find that the Police can bail you, and regularly do bail people!

I'm sorry, my mistake, the Police can indeed bail you but that only means you have to stay in contact with them. You don't have to give them money.

source: http://www.homeoffice.gov.uk/police/powers/custody/