In the United Kingdom, a “caution” may be issued to an offender by police as an expeditious way of dealing with minor offenses that do not require court intervention. As no court is involved and there is no deprivation of liberty or property, cautions have historically not been treated as convictions or as “admissions” for U.S. immigration law purposes. That has now changed.

In late 2013, U.S. Customs and Border Protection became concerned that aliens with cautions were entering the U.S. without having their criminal histories properly vetted and asked the Department of State (DOS) to put a process in place to address these concerns. For several months, all U.K. visa applicants with cautions had their applications held in abeyance while DOS implemented a policy.

In July 2008, the process by which U.K. police administer cautions changed. Offenders are now questioned to ensure that they agree to having committed the essential elements of the underlying offense. Moreover, the caution document itself was changed to include language that the caution could potentially prevent international travel and immigration. Therefore, any caution issued after July 10, 2008 is considered an “admission” and may be grounds for visa ineligibility, akin to a conviction. Applicants who were issued cautions before July 10, 2008 may still be found ineligible for a visa if they make an admission to a consular officer in accordance with the protocol set forth under 9 FAM 40.21(a) N5.1. This FAM provision requires that the admission have been made under oath, after the applicant is apprised of the elements of the offense, in a recorded proceeding. However, this pertains to admissions made to consular officers only; admissions made to law enforcement personnel in the administration of the caution need only follow the accepted U.K. police protocol. AILA discussed this issue with the U.S. Embassy in London and was told that, absent extraordinary circumstances, applicants with cautions issued before July 10, 2008 are not generally put through the FAM’s admission process and the caution generally does not form the basis for visa ineligibility.

As a caution is issued following an arrest, aliens with cautions (issued before or after 2008) for crimes involving moral turpitude or controlled substance offenses are not eligible to travel to the U.S. on the visa waiver program/ESTA. Instead, they must apply for a visa at a U.S. Embassy where their offenses must be disclosed and vetted by a consular officer. Notably, the U.K.’s Rehabilitation of Offenders Act, by which certain minor offenses do not need to be disclosed in the U.K. after a certain period of time, does not apply to U.S. immigration law. Therefore, all offenses for which a caution was issued must be disclosed. For those with post-July 2008 cautions, a waiver is required for both nonimmigrant and immigrant visa applications. Nonimmigrant waivers may take up to 6 months to adjudicate. Immigrant waivers are limited in scope and do not waive most offenses involving a controlled substance. Of course, the same exceptions to ineligibility for a visa apply in these cases that apply in cases where the applicant was convicted; however, as the U.K. issues approximately 200,000 cautions a year, this will affect a considerable number of applicants.

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