The Assistant Secretary, Department of Home Affairs, has forwarded to me the following memorandum for advice:

I desire to invite attention to your Opinion No. 162, dated 10th August, 1923,1 in which it is stated that an illegitimate child takes the nationality of its mother.

The Department has recently had to deal with the case of an application for a British Passport received from a person who was illegitimately born in Switzerland of a British mother.

On page 8 of Foote’s Private International Law (1925 Edition) it is laid down that since British nationality by descent is only obtained through the father, the illegitimate child of an English woman born out of the British dominions is not a British subject.

It is also observed that in Dicey’s Conflict of Laws (1896 Ed., page 180, and 1927 Ed., page 173) an illustration is given to the effect that the son, born in Paris, of an unmarried Englishwoman is not a British subject.

In the circumstances it would appear that the person referred to in paragraph 2 cannot be regarded as being a British subject by birth, and he has therefore been advised to apply for a Certificate of Naturalization.

In view of your Opinion referred to above, I shall be glad to be favoured with your comments.

In my opinion, the person referred to above is not a British subject. Section 6 of the Nationality Act 1920–1925 sets out that certain classes of persons are to be deemed to be natural-born British subjects. It also provides that a person born out of His Majesty’s dominions, and whose father was at the time of his birth, a British subject, and who fulfils one of certain conditions set out therein, is to be deemed to be a natural-born British subject. Although the definition of natural-born British subject is not expressed to be exhaustive, yet the inclusion of certain classes, defined in considerable detail, conveys an implication that other classes are excluded. I think therefore that the illegitimate child, born in Switzerland, of a British woman, as he is not included within the above definition, cannot be regarded as being of British nationality.

There is no uniform rule among nations by which the nationality of a person may be determined from the place of his birth. In Wheaton’s Elements of International Law (5th ed.) at p. 139, reference is made to the acquisition of nationality by birth in certain countries of Europe–Denmark, Portugal, Holland, Sweden and Italy. It is then stated that, if a child is born in any other European country, he does not acquire its national character, but follows that of his father, if legitimate, and that of his mother, if illegitimate.

It would thus appear that the above child may be regarded in Switzerland as a British subject although under the Nationality Act he is to be regarded as an alien. Whether a person is a national of any country is to be decided by the municipal law of the country concerned–see Stoeck v. Public Trustee 37 T.L.R. p. 666.

[Vol. 25, p. 24]

(1) Opinion [Vol. 20, p. 112] not published.