I was declined an ESTA due to answering yes in have you ever been convicted. I thought it would ask when and why to explain but no its a blanket question. I was a junior aged 16 and only received a minor police caution for possession of a controlled drug, I am now 43 and never been in trouble as an adult and I am fully SC cleared for my job.... what is the best approach?... I assume going to Canada is out the question, what a mess.

  • Thank you for your quick responses. What if I want to travel to Canada instead? I assume the eTA would be refused because the ESTA refusal? and I would need to get a visa for Canada? – Trev Aug 7 '19 at 16:19
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    You might want to check this with a lawyer, but in most cases a 'caution' is not considered a conviction. Did you go to court? – DJClayworth Aug 7 '19 at 16:48
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    Check with a lawyer, but I'm pretty convinced you didn't need to answer "Yes" to "Have you been convicted". But now you are going to have problems because they will assume you are hiding something. – DJClayworth Aug 7 '19 at 17:43
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    @Trev I'm not a lawyer but that doesn't really sound like a conviction to me. Unfortunately, it might be a mess applying for a new ESTA as they won't know what to do with it and likely based on the last refusal would refuse a new ESTA too, therefore probably have to go through a £160 visa application unless you can fly to Canada directly and avoiding US fully. However, maybe it's possible to apply for the new ESTA, I mean it's only $14 to lose - though I would like to hear what others think of it? – kiradotee Aug 7 '19 at 22:12
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    @Trev: I wouldn't take it as given that ESTA counts as "permit to enter a country". The ESTA small print is pretty explicit you can still be turned back and have no right to admittance to the US. (But I'm not a lawyer.) – Ulrich Schwarz Aug 8 '19 at 5:57

ESTA materials say that if your application is unsuccessful you should apply for a US visa. That is where you will have the opportunity to say "when and why and explain."

I suspect your chances are fairly good, but if you are not successful you will lose the $160 application fee.

  • Or read carefully the instructions (and contact consular office to be sure you interpret legalese correctly). I think after 25 year you should not more write convictions, but I really do not want to look all small print for this. – Giacomo Catenazzi Aug 8 '19 at 8:32
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    @GiacomoCatenazzi under US law it is definitely likely that failing to mention this incident would be considered deception, which triggers a lifetime ban. It's already been mentioned in the ESTA application. The best course of action is definitely to apply for a visa and use the application to explain the circumstances, unless the applicant prefers to abandon the plans to travel to (or through) the US. – phoog Aug 8 '19 at 10:01
  • I do not recommend to lie. I just say that on a form the questions are short. In the relevant document they explain what should be considered "conviction" (remember that we are discussion with 190 and more other countries definitions). IIRC (for US), there were a cut off date (and about minors). The problem with drugs: minor and major offences seems often arbitrary, so one should read carefully. Your answer is correct, but possibly there is still a legal shortcut. – Giacomo Catenazzi Aug 8 '19 at 10:06
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    @GiacomoCatenazzi true. It may be that Trev could have answered "no" to a question about conviction since he was only "cautioned" -- I do not remember what the US embassy says about this. Others might want to take that into account, but for Trev it is probably too late as I would guess a subsequent ESTA application with a different answer would also be refused. – phoog Aug 8 '19 at 10:10

The best approach is now to apply for a regular visa. AFAIK there you can explain a bit more about your circumstances in the visa interview.

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