Repute Law

(7.00 am to 11.00 pm, 7 days)

Can I Travel Overseas
with a Criminal Record?

Travel is exciting, inspiring, rejuvenating, and a great way to discover the world’s beauty. Whether your dream holiday is a sunshine escape, winter getaway or action-packed adventure, travel lets you explore new places and revisit some old favourites.

However, if you’re an Australian citizen and wish to travel overseas or even emigrate to another country, you may discover your plans come to a screeching halt if you have a criminal record. Depending on where you want to go, you may find some borders are closed to you.

Travelling to the USA

The United States makes it difficult for anyone with a criminal record to enter the country. Even “spent” or “pardoned” convictions can affect whether you´re allowed entry.

As an Australian citizen, you can travel to the US without a visa if you intend to be there for 90 days or less. To do so, you are required to travel under the Visa Waiver Program.

You can apply for authorisation to travel to or through the United States by completing an ESTA (Electronic System for Travel Authorisation) form. However, getting an ESTA approved when you have a criminal record will depend on the nature of the crime, the offender’s age at the time of the crime and when it occurred.

It is not a good idea to lie on the ESTA form. If you are found out, the consequences could be serious and include prosecution, deportation and refusal of a future visa application.

Below is a list of crimes that may make you inadmissible to the United States:

1. Moral turpitude offences. This is a legal, catch-all term in the US and is broadly defined as offences that insult public decency and are contrary to community standards of justice, honesty and good moral values. They include:

  • Crimes against the person such as murder, manslaughter, rape, kidnapping, gross indecency and assault.
  • Crimes against property such as arson, robbery, forgery, burglary, theft, criminal damage, receiving stolen goods and making false representation.
  • Crimes against government authority such as benefit fraud, bribery, perjury and tax evasion.

An offence is not considered one of moral turpitude if:

  • The person was under 18 years of age when they committed the offence
  • The person was released from prison more than five years ago
  • The maximum penalty of the crime wasn´t more than one year in prison
  • The person wasn’t sentenced to more than six months in prison

2. A controlled substance violation such as drug possession, trafficking and conspiracy to commit such a crime.

3. Convictions for two or more crimes if the prison sentences totalled at least five years.

Travelling to Canada

The Canadian Border Services Agency (CBSA) determines entry into Canada in accordance with Canadian law. Any Australian citizen with a criminal record can be denied entry to Canada. Typically, inadmissibility applies to any act deemed an offence in the country where it was performed as well as an offence in Canada. The types of criminal offences that may lead to inadmissibility include:
  • Driving under the influence
  • Theft
  • Assault
  • Fraud
  • Drug offences (such as possession, production, consumption or distribution)
When assessing a person´s eligibility to enter the country, the judgement is based on the severity of the crime and its penalty in Canada.

While you may be denied entry if you have a criminal record, you may be able to overcome criminal inadmissibility by submitting a Criminal Rehabilitation application.

This is only for people convicted of an offence outside Canada. It is a long process; applicants must present numerous documents and references to support their claim of being rehabilitated.

Typically, processing times are 6-12 months from submitting an application form and associated documents.

If you have only one conviction and ten years have passed since you completed the sentence, you will probably be considered rehabilitated and not have to apply for Criminal Rehabilitation.

Convictions in Canada that carry a prison sentence of ten years or more are considered serious criminality. Individuals with serious criminality must apply for Criminal Rehabilitation no matter how much time has elapsed since they completed their sentence.

Travelling to Europe

The rules in Europe surrounding entry for people with a criminal record are more relaxed, especially in Schengen Area countries. This zone consists of 26 neighbouring countries such as France, Italy, Belgium and Spain that have abolished passport and border controls at their mutual borders. In general, most visitors to Schengen Area countries will not receive a criminal conviction check at border control. However, some countries have stricter rules than others. For example, Germany forbids entry to anyone convicted of a drug-related crime with a prison sentence of more than two years.

While European countries have taken a more relaxed approach regarding inadmissibility than the USA and Canada, things are changing. The European Travel Information and Authorisation System (ETIAS) visa waiver programme is due to be launched in November 2023. The aim is to increase security and strengthen the borders of Schengen Area countries.

Citizens of more than 50 countries, including Australia, will have to complete an online application and obtain an approved ETIAS visa waiver before entering any Schengen country. Part of the assessment process is a check for any previous criminal records. You will still be able to travel to Europe with a criminal record, although this will depend on several factors:

The nature of the crime

The severity of the sentence

The rules of the destination country / ies

Final Thoughts

If you are travelling with a criminal record, there are things you can do to make the experience more manageable. Read up on the immigration laws of your destination country, have patience with the system and be honest at border control and when filling in application forms. Even if you think your crime is minor, you should disclose it.

And finally, just because you have a criminal record doesn’t necessarily mean you won’t be able to travel to the foreign destinations of your dreams.

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