Travel allows us to experience new sights, sounds, foods, meet new people, and can be essential for career purposes. However, for individuals with a criminal record, the reality of traveling can be challenging. This is because the individual may be deemed criminally inadmissible as a result of their offense, and crossing a border, whether by air, ground or sea, is equated with asking permission to enter a country; each of which has their own set of rules and guidelines regarding who may be permitted. Many countries do not permit entry to such persons, and although there are some exceptions, these will usually require additional searches, questions, and barriers, along with onerous documentation. It is important to remember that every country varies regarding its immigration laws and that even though they may be clearly outlined, the actual application of law may be found inconsistent. Moreover, it is often entirely at the discretion of the immigration officer to grant entry to the country. If an officer is of the opinion that an individual may threaten public safety in any manner, they are at liberty to deny them entry, regardless of the immigration laws. The following article outlines the prospects for individuals traveling with a criminal record to several countries, specifically in the case of a DUI offense. Notably, some countries give little information regarding this issue, and seeking further information from the relevant embassy is very much advised.
Disclaimer: FWCanada is a Canadian immigration law firm, with expertise only in criminal inadmissibility to Canada. This article was written for informational purposes only and does not constitute legal advice. For individuals with a criminal inadmissibility status, we suggest further research on the appropriate immigration website for the specific country of travel.
UNITED STATES OF AMERICA
Criminal Inadmissibility
Outlined within the U.S. Immigration and Nationality Act, ‘a crime involving moral turpitude’ (or the admission of the acts that constitute such a crime) is a ground for inadmissibility to the U.S. and can also result in removal. Typically, a crime of moral turpitude describes conduct that is considered contrary to the community standards of justice, honesty, or good morals, along with an element of intent. Clear examples of crimes of moral turpitude include homicide, assault with a dangerous or deadly weapon, tax evasion, perjury, and theft. Factors such as age at the time of the offense and the length of time passed since the offense may affect whether the crime is deemed to have involved moral turpitude. A crime will not be considered one of moral turpitude if: the offender was under 18; at least 5 years have elapsed since the completion of sentencing (exact time periods may vary with relation to imprisonment/ conviction date); or the maximum possible sentence for the offense was less than 12 months (regardless of the actual sentence received) and you were sentenced to 6 months or less.
Importantly, an information sharing agreement exists between the US and Canada, allowing immigration authorities to have easy access to any recorded criminal history of citizens from either nation. In practice, when a passport is swiped, the criminal history of the passport holder appears on the immigration officer’s screen, clearly presenting any criminal history on record without a doubt. Subsequently, criminal inadmissibility between these nations will lead to easily determined refused entry.
DUI entry
A DUI offense typically does not include reference to intent; therefore, a conviction of this kind may not be considered a crime of moral turpitude (unless combined with an aggravating factor). Consequently, a DUI criminal record may not necessarily result in a removal order, though it is still likely to challenge admissibility to the U.S. Furthermore, within the Immigration and Nationality Act there is a section dictating that individuals suffering from certain medical conditions, including alcoholism, can be deemed inadmissible on these grounds; however, for this factor to be considered the individual would need to have more than a single DUI on record, as well as evidence of a repeated problem. Concerning a drug-based DUI offense, the Immigration and Nationality Act holds strong intolerance and commonly renders inadmissibility and deportation, though this will usually depend on the case specifics.
Overview: Depending on whether the offense was considered a crime of moral turpitude. Steps taken since the offense to become an upstanding member of society are predicted to be relevant and an offense pardon may benefit the application.
Outcome: Admissibility may be challenged
ESTA (Electronic System for Travel Authorization)
From January 12, 2009, any person entering the United States under the visa waiver programme is required to hold an approved ESTA Travel Authorization. The ESTA is an online application system used to pre-screen citizens and nationals from the Visa Waiver Program countries to determine eligibility for entry to the US before they are allowed to board an airplane or ship bound for the United States. The Visa Waiver program permits travel to the United States for tourism or business purposes for up to 90 days without a visa. Within the ESTA applicants are presented with the question “Have you ever been arrested or convicted for a crime that resulted in serious damage to property, or serious harm to another person or government authority?”. If you attempt to travel to the US having lied or withheld information on your ESTA and are found out, you are potentially committing a criminal offense under a U.S. law. Therefore, offense details regarding an individual’s conviction and punishment will always need to be supplied and an interview will be required to assess eligibility. The interview is the opportunity to demonstrate that you are an ‘upstanding member of society who would not engage in further criminal activity within the U.S.’.
EUROPEAN UNION
Criminal Inadmissibility
Typically, travel through Europe is no issue for those with a criminal history if your trip is less than 90 days, though you will still need a Schengen Visa. Longer trips, however, will require a visa, meaning that you will be asked whether or not you have a criminal record – this may lead to complications, especially if you lie. Refusal to any one of the EU countries will be shared on the Second Generation Schengen Information System II (SIS II) which allows for easy information exchanges between EU national border controls, customs, and police authorities. Most of the EU takes part in the Schengen Agreement (incorporated into European Union law by the Amsterdam Treaty in 1999) which puts forward measures intended to gradually abolish border checks at the signatories’ common borders. As such, individuals who have been granted admissibility into the EU should be able to travel without issue between the agreed countries. Notably, Ireland and The United Kingdom have opted out of the Schengen Agreement.
DUI entry
Overview: A DUI is not a ‘prohibited offense’ within the EU, therefore individuals with this form of record should not face restrictions traveling through much of Europe.
Outcome: Admissible
UK & IRELAND
Criminal Inadmissibility
The United Kingdom has a concept known as ‘spent’, which means that they believe rehabilitation is possible if a sentence is completed and enough time has elapsed. However, different amounts of time are needed for what is considered spent and this is entirely dependent on the nature of the conviction. A Standard Visitors Visa is for those who want to travel for up to 6 months to the UK, for leisure or business purposes. Within the immigration rules of the UK, individuals will be deemed inadmissible if they are currently the subject of a deportation order, or have been convicted of an offense for which they had been sentenced to at least 4 years’ imprisonment. However, individuals sentenced to a period of imprisonment of at least 12 months but less than 4 years, will be considered to have spent their conviction after a 10-year period and will, therefore, regain their admissibility. Equally, an individual sentenced to an imprisonment term of fewer than 12 months, will be considered to have spent their conviction once 5 years has passed. For any form of offense, applicants are subject to refused entry if their conviction took place within 12 months prior to the application, and they received a non-custodial sentence or other out of court disposal that is recorded on their criminal record.
N.B. Individuals with a criminal history are advised to look up the specific conviction to see how it aligns with UK travel policy and determine whether it is spent or not.
DUI entry
Though the outcome of Brexit is unclear for the time being, even before the UK joined the EU they did not consider a DUI to be a criminal offense – they consider it to be a misdemeanor. In the UK only criminal offenses are grounds for inadmissibility, therefore an individual with this type of offense record may be permitted to the UK.
Overview: It is important to look up the precise terms of whether the individual’s offense is spent or not. In the case of DUI, for the time being, an individual has completed their sentence may be enough for a rehabilitated status, though this will depend specifically on the terms of offense and the severity of punishment. However, any conviction that has taken place within 12 months prior to travel is grounds for refusal.
Outcome: Admissibility may be challenged
AUSTRALIA
Criminal Inadmissibility
You must not have any criminal convictions for which the sentence or sentences (whether served or not) are for a total period of 12 months’ duration, or more, at the time of travel to Australia. If you have any criminal conviction you must apply for a Subclass 600 Tourist Visa.
DUI entry
Under Australian Immigration Law, an individual can be deemed inadmissible if they have a criminal record of a DUI with a sentence of one year or more incarceration time, this criterion is labeled as an ‘aggravated felony’. However, most DUIs do not have a one-year long sentence, unless in the case of multiple offenses.
Overview: A DUI offense with a punishment of less than one-year incarceration time is not grounds for inadmissibility.
Outcome: Admissible
ETA
An Australian ETA permits entry to tourists from visa waiver countries for up to three months (it is valid for 12 months), a business version is also available which does not allow individuals to work for a company but does permit attendance to meetings and conferences. It is simple to apply for an ETA, the travel agent or airline can submit the application or it can be submitted online. Usually it is approved on the spot; however, sometimes there is a delay when more processing is needed of your application, including investigation.
Notably, it is typical that Individuals with any prior conviction cannot apply for an ETA and should instead make an application for a normal tourist visa or Subclass 600 Tourist Visa; this process is longer as it gives the authority a chance to investigate further into the applicants details and make a more informed decision based on the seriousness of the conviction, the time passed since the conviction, and the applicants intentions while visiting the country. Any non-disclosures may be interpreted as misrepresentation and could lead to exclusion. Moreover, if your visa is denied due to the nature of the applicant’s crime, you will not be allowed to apply again.
NEW ZEALAND
Criminal Inadmissibility
Under the New Zealand Immigration Act, individuals will be deemed inadmissible if they have been convicted and sentenced to imprisonment for 5 years or more (even in the case of a pardon or record suspension), if in the past 10 years they were convicted and sentenced to imprisonment for 12 months or more, and if there are any relevant deportation orders against the individual. Moreover, if the authorities believe you to be any threat to New Zealand security or public order, this is also grounds for denied entry.
DUI entry
Similar to Australia, New Zealand does not consider a DUI to be an aggravated felony, and as most DUIs do not have a one-year long sentence admissibility should remain intact.
Overview: A DUI offense with a punishment of less than one-year incarceration time is not grounds for inadmissibility.
Outcome: Admissible
ASIA
Criminal Inadmissibility & DUI entry
Countries including India, Pakistan, Sri Lanka, and Bangladesh do not bar entry to DUI, though it is still essential to disclose all convictions. Thailand, Indonesia, South Korea, and Borneo are also considered to be less strict.
Outcome: Likely to be admissible
However, China, Malaysia, and Japan take issue with any misdemeanor conviction, requiring individuals to disclose any interaction with the court’s system and have harsh punishments for misrepresentation.
Overview: Inadmissible
THE UNITED ARAB EMIRATES (UAE)
Criminal Inadmissibility & DUI entry
Attempting to gain entry to the UAE with a DUI conviction may be viewed particularly negatively due to the conservative Muslim culture. As with all immigration ports, the decision of granting entry is left at the discretion of the immigration officer. In this situation, the best legal advice would be for the applicant to contact the consulate or embassy of the country they are intending to visit and find out the full extent of the problem under current regulations and laws.
Overview: As a conservative Muslim society a DUI conviction is likely to be viewed particularly negatively.
Outcome: Likely to be inadmissible
IRAN
Criminal Inadmissibility & DUI entry
US, UK or Canada citizens face greater challenges when attempting to gain entry to Iran, as since 1979 Iran has not had any treaties, agreements, or diplomatic communication with these countries; meaning that you will not be able to get a visa issues in the US, UK or Canada due to there being not Iranian Embassy or Iranian Consulate. Notably, Iran does not have a share criminal conviction information for these reasons. A Visa may be obtained, however, from any other embassy or consulate in the world where Iran has relations. Additionally, Iran does have Good Conduct screening, and like the UAE is generally a conservative society with particularly negative views on alcohol; as such, admissibility is likely to fall to the discretion of the immigration officer.
Overview: Iran does have a Good Conduct screening, as well as being a conservative Muslim society.
Outcome: Likely to be inadmissible
AFRICA
NORTH & SUB-SAHARAN
A DUI would most likely not prohibit travel, though Egypt and Morocco have particularly thorough screening.
Outcome: Admissibility may be challenged
SOUTH AFRICA
Criminal Inadmissibility & DUI entry
Visitors from a number of countries, including the UK, U.S., Germany, France, the Netherlands, Australia, Brazil, Canada, Russia, and Angola, don’t need visas to come to South Africa for a period of 90 days or less, therefore a conviction would not likely be an issue. For individuals who do require a visa prior to arriving in South Africa, such as for work or immigration, the disclosure of past convictions must be made on the application form – denied entry may result due to non-disclosure, even if it was not asked.
Overview: For entry to South Africa, a DUI conviction would not typically bar entry, though a felony DUI may present a problem.
Outcome: Likely to be admissible
MEXICO
Criminal Inadmissibility & DUI entry
Though Mexico’s laws change rather frequently, for the time being, they are considered indictable offenses.
Overview: It is typical that foreign nationals with DUI conviction will be refused entry to Mexico if the offense occurred within the past 10 years.
Outcome: Inadmissible
BRAZIL
Similar to other countries, traveling to Brazil for a period of fewer than 90 days will not typically require a background check, though a tourist visa will still need to be obtained for non-visa-exempt countries (this included the UK, but not Canada or the U.S.). For longer stays, however, authorities will usually require a criminal records certificate. The document must be issued by foreign applicant country of origin, lived in for the past 12 months; it must then be translated into Portuguese. Though crime offenses and misdemeanor offenses are distinguished under Brazilian law, the visa application process for individuals with a criminal record is analyzed case by case, and therefore it is difficult to forecast whether a specific offense will lead to an inadmissibility status.
Overview: For longer than 90-day stay, a criminal records certificate will need to be produced. Visa applications will be assessed on a case by case basis.
Outcome: Admissibility may be challenged
CANADA
Criminal Inadmissibility
In determining whether an individual is admissible to Canada, the Immigration and Refugee Protection Act categorizes offenses as “criminality” or “serious criminality”.Criminality cases occur when a committed offense is punishable by indictment in Canada (or an equivalent offense abroad). Individuals with a criminality record are deemed inadmissible. In order to regain an admissible status to Canada, individuals must obtain a record suspension (pardon) or may apply for Criminal Rehabilitation five years after completing all sentencing. In the case that only on criminality offense was committed, individuals may be automatically deemed rehabilitated after the passage of 10 years, effectively resolving the issue of inadmissibility. However, if an individual is classified as having committed a serious criminal offense, typified when an offense results in a maximum punishment of at least 10 years (or equivalent offense abroad), then they can only regain admissibility through record suspension or Criminal Rehabilitation, they can never be rehabilitated through the passage of time. Under exceptional circumstances, individuals with a criminal record may be granted temporary entry to Canada, though this requires a Temporary Residency Permit (TRP).
DUI entry
Currently, DUI offenses are categorized as a criminality offense, therefore individuals are inadmissible, but may be deemed rehabilitated after 10 years if only one offense was committed. However, from December 18, 2018, DUIs will be classified as a serious criminality offense and individuals must always apply for Criminal Rehabilitation or a TRP. Read more about the harsher penalties for DUIs and how to travel to Canada with a conviction, here.
Overview: Currently, DUI offenses are labeled as criminality and once 10 years have passed from the completion of all sentencing the offender will automatically be deemed rehabilitated. However, from December 18, 2018, DUI offenses are labeled as serious criminality. Applicants must always apply for the Criminal Rehabilitation programme or a Temporary Residency Permit (TRP).
Outcome: Inadmissible
eTA
An eTA is an entry requirement for visa-exempt foreign nationals traveling to Canada by air. It is electronically linked to the traveler’s passport and is valid for 5 years or until the passport expires, whichever comes first. A valid eTA allows travelers to come to Canada as often as they want for short stays (usually 6 months at a time). Notably, an eTA does not guarantee entry to Canada and border services may ask to see other documents as well as your passport. For individuals with a criminal history, extra information must be provided on their eTA application and they may also be requested for an interview.
TIPS
Typical for many countries, a pardon (referred to as a Record Suspension in Canada) can help support your application for a tourist visa. A pardon means that your background has been thoroughly investigated and the issuing government has determined that the individual is rehabilitated. If you are eligible for a pardon, it is recommended that you apply in order to increase your chances of admissibility, though this is not always the case. Note that even with a pardon you will still need to declare your record, but the pardon will be taken into consideration along with all the other relevant factors.
When it comes to traveling with a criminal conviction, the best advice would be to contact the consulate of the country you hope to visit and learn their policy towards different forms of foreign charges and convictions. It may be necessary to go undergo a fairly complex procedure which can take some time in order to gain entry. If you know you have upcoming international travel plans, it would be beneficial to work with immigration lawyers who can ensure you have the required paperwork and are processing it correctly.
However, as mentioned, almost all governments grant their immigration officers the power to deem individuals either admissible or inadmissible – meaning that your entry will be entirely at their discretion, regardless of the countries given outlines.
At FWCanada, we are happy to offer a free consultation to promptly provide an honest assessment of questioned admissibility cases and subsequent chances of success. As one of the leading immigration law firms in Canada specializing in criminal inadmissibility, we have extensive experience handling a wide range of cases. We prioritize detailed reviews of each client’s case to optimize application approval.
Please call on our toll-free number: 1.855.316.3555 to ask all your burning questions and remedy confusions because providing honest and accurate advice is our ethos.
FWCanada is a Montreal-based immigration law firm that provides professional legal services on Canadian immigration. For more tips and updates on Canadian immigration, follow FWCanada on Facebook, Twitter, and LinkedIn.
