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As I am currently pursuing a law degree in International and European law, I was looking at job opportunities in English-speaking countries. I know the basic (technical/ academic) requirements to become a prosecutor or a judge in each of those countries, however, I had a very hard time finding any information on the citizenship requirement for those higher legal positions. So, for each of those countries mentioned above, is it a requirement have citizenship of that country in order to be eligible for a position of a judge or a prosecutor?

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  • International and European law: I assume this is civil as opposed to common law then?
    – sharur
    Nov 4, 2021 at 17:49
  • @sharur yes, indeed Nov 4, 2021 at 17:52

5 Answers 5

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is it a requirement have citizenship of that country in order to be eligible for a position of a judge or a prosecutor?

No.

Technically, you don't even need to be a permanent resident — you can be just on a temporary work visa.

However, while that practically won't pose a problem to become a prosecutor, it may well be de-facto impediment to become a judge. Whereas the eligibility requirements for judges (District Court, Senior Courts) say nothing about citizenship, practically who becomes a judge is decided just by one person — the Attorney-General, whose head is not transparent and who knows what considerations are entertained in it.

Prosecutors in NZ can be split into 3 categories:

  • Crown prosecutors — lawyers working for the Crown. Just become a lawyer and get a job at the Crown office. This is how many defence lawyers start their careers — get experience putting people in jail on behalf of the Crown, then jump on the other side and make heaps of money by keeping them out of jail. Eventually you may be invited to be a judge;
  • Other public prosecutors — not necessarily even lawyers — Police, Ministry for Children, Work Safe, local governments/councils etc. If not lawyers, they still can conduct judge-alone/bench (not jury) trials;
  • Private prosecutors. Any lawyer can do this for their clients. (In fact, just anybody can be a private prosecutor for themselves, but this is not a paid job of course).
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Is citizenship a requirement to become a prosecutor/ judge in the ?

Yes and No

citizens (including those holding dual nationality) of the United Kingdom, the Republic of Ireland or a Commonwealth country.

  • Crown Advocate jobs, with the Crown Prosecution Service, are broadly open to the following groups:

UK nationals

nationals of Commonwealth countries who have the right to work in the UK

nationals of the Republic of Ireland

nationals from the EU, EEA or Switzerland with settled or pre-settled status or who apply for either status by the deadline of the European Union Settlement Scheme (EUSS)

relevant EU, EEA, Swiss or Turkish nationals working in the Civil Service

relevant EU, EEA, Swiss or Turkish nationals who have built up the right to work in the Civil Service

certain family members of the relevant EU, EEA, Swiss or Turkish nationals

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The has a federal system of government that does not have a unified national court system. Indeed, even within most U.S. states, there is not a completely unified court system - instead, in most states, there is a primary state court system, but there are also independent local government courts only loosely connected to the primary state court system.

This matters because, some U.S. judges and some U.S. prosecutors are elected officials who must be eligible to vote, and hence, must be U.S. citizens, in order to run for office. But, other U.S. judges and other U.S. prosecutors are appointed officials who must (in most, but not all cases) be admitted to the practice of law, but usually do not need not be U.S. citizens. U.S. citizenship is not a prerequisite to the practice of law, and most appointed judges and appointed prosecutors in the U.S. do not face a citizenship requirement separate from being a lawyer.

Either way, while junior prosecutors can be hired after law school and admission to the practice of law to prosecute cases in the U.S. (typically starting with less serious cases and working their way up the ranks in a prosecutor's office), almost all judicial positions that require a law degree require many years as a practicing lawyer (typically five years as a statutory minimum, but ten or fifteen as a practical reality to be considered seriously) before being appointed to such a position. And, one does not as a U.S. judge start at the bottom and work your way up. You are appointed to a post and often will serve in that post for the rest of your life. Each new judicial appointment is independent of past appointments and does not involve promotions within the judiciary's civil service system.

All lawyers, prosecutors, and judges, however, must give an oath or affirmation that they will uphold the United States Constitution (this requirement is tucked away at the end of the original U.S. Constitution with the gloss of subsequently interpretation which has held that attorneys are minor judicial officers of the court for this purpose). And, in some circumstances, such an oath or affirmation could be treated by the citizenship and nationality laws of another country as an abandonment of that citizenship or nationality by swearing allegiance to another government. Specifically, Clause 3 of Article VI of the U.S. Constitution states that:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Also, essentially all judgeships and prosecutor positions are positions of permanent employment for which a non-citizen must have an immigration status that authorizes that kind of work, typically "lawful permanent residency" status also known as a "green card" (even though the card certifying that status is no longer green in color), although there are probably one or two other obscure immigration visas that are rarely used that would also suffice.

The government employer could insist on citizenship if it wanted to in most cases, but few governments do, because few non-citizens seek these posts and it just hasn't been an issue upon which governments have felt the need to issue regulations.

There are a small number of judicial positions in the U.S., however, that allow judges who are not lawyers to be appointed or elected (the same distinction between elected and appointed judges applies, however, and all of them still have to swear an oath, and be legally employable). There are also a small number of U.S. jurisdictions in which non-lawyers such as police, routine prosecute minor crimes, such as police in Rhode Island. But, again, this distinction doesn't really change the analysis.

Other Countries

So far as I know, none of the other common law countries mentioned have elected judges (I don't know how prosecutors are selected in all of those countries, but elected prosecutors are also, at a minimum, less common in those countries than in the U.S.).

Also note that while many European countries have a separate profession for judges and/or for prosecutors from the primary private trial lawyer professional credential, to my knowledge, none of the common law countries mentioned do so.

Judges and prosecutors in those countries are lawyers who also happen to have particular government jobs (and prosecutors are often barristers hired on a case by case basis rather than career civil servants in England, in serious cases, at least).

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Judges and Magistrates

Yes, you must be an Australian citizen.

Crown Prosecutors

At the Commonwealth level: yes, unless the Attorney General waives that requirement,

At the state level, it varies.

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Executive Summary: Prosecutors and judges are different. Prosecutors are governed by rule dependent on jurisdiction. Judges are either elected or appointed by elected officials; citizenship may or may not be an official requirement, depending on jurisdiction, but either citizenship or years of residence is likely a de facto requirement.

First thing: All of the jurisdictions you mention are "common law" jurisdictions, rather than "civil law" jurisdictions like much of Europe.

One aspect of this, is that a civil law judge and a common law judge have different roles in the system, and judges and prosecutors are very different; A common law prosecutor has more in common with the defense council (or a private party lawyer in a lawsuit) than a judge.

In a civil system the judge often brings the formal charges, investigates the matter, and decides on the case (https://www.law.berkeley.edu/wp-content/uploads/2017/11/CommonLawCivilLawTraditions.pdf). In a common law court, a prosecutor brings charges, investigations are done by separate systems before charges are brought, and judges very rarely decide cases. Common law judges act as moderators and administrators, primarily make rulings on allowing or disallowing evidence or testimony, and crafting instructions on law to the lay jury who decide the majority of cases.

In the US, a prosecutor is generally an Assistant District Attorney (under the direction of an elected or appointed District Attorney/Attorney General), and will need admittance to the (geographically) relevant Bar Association (essentially the lawyer regulatory body of the jurisdiction). One needs to pass an exam, and depending on the jurisdiction, take additional course work and qualifications for a foreign lawyer (which will be harder/more intensive for a civil-law jurisdiction lawyer). Various jurisdictions may have additional requirements, which may include citizenship. The US, for most legal questions, should in my opinion not be viewed as a single block, but as a collection of operate systems with some common governing rules (so, a point of comparison should not be for, example, Germany or Spain, but rather the EU as a whole).

A (n article III*) judge in the US is elected or appointed by elected officials; in theory, it does not require citizenship, however, in practice, it will need, if not citizenship than at least enough years of residence as to make no difference from the view point of someone thinking of moving for a career.

*the name comes from the US Constitution: The third article of which lays out the structure of the (federal) court system. There are also "Article I" judges, under the executive branch, which mostly hear appeals of government agency rulings and/or immigration decisions.

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