Australian court rules against government in indefinite detention case
The Australian High Court has unanimously ruled against the federal government in a case concerning indefinite immigration detention. The case was a damages claim brought by an Austrian citizen, Safwat Abdel-Hady, who was detained for 18 months despite having no realistic prospect of removal due to health issues.
The government sought to rely on a previous ruling of the High Court (Al-Kateb) which was overturned in 2023. Commentators have suggested that the decision may lead to other compensation claims, leading to a bill which could “run into the tens of millions of dollars”.
Sara v Gheorgheni Court, Romania [2026] EWHC 1402 (Admin)
In Sara v Gheorgheni Court, Romania [2026] EWHC 1402 (Admin), the High Court has allowed an appeal against extradition on grounds relating to human rights law. The case concerns the definition of “conviction” and “trial” under s 20 of the Extradition Act 2003 (EA 2003) and the impact of delay on the balancing exercise required under Article 8 ECHR.
Facts and background
The appellant was convicted and sentenced in respect of two driving offences in Romania in June 2016. He received a suspended sentence of two years and ten months imprisonment. On his own case, the appellant left Romania shortly afterwards. Following a complaint by the Probation Service, the suspended sentence was then activated in December 2016. In early 2017, the appellant arrived in the UK where he has settled.
Further proceedings in Romania ensued in which the appellant’s sentence was changed multiple times. The net result was reached in April 2022. The appellant’s original sentence (now activated and not yet served) was split into two sentences totalling two years and six months and then merged with sentences for a number of other offences. The appellant was not present for any proceedings following the initial sentencing in 2016.
Decision
The court allowed the appeal on two grounds.
First, the court held that the appellant could not be considered to have “deliberately absented himself from his trial” under s 20(3) of EA 2003 and therefore, since no right to a retrial or appeal was endorsed on the arrest warrant, he fell to be discharged under s 20(7) [113].
Second, the court held the district judge (DJ) was wrong to conclude that extradition was not a disproportionate interference with the appellant’s rights under Article 8 ECHR [118].
Reasoning on section 20
Where a person is subject to an extradition request on the basis that they are unlawfully at large after conviction, the court must decide whether the person was “convicted in his presence”: s 20(1). If the person was not present, then the court must decide whether the person “deliberately absented himself from his trial”: s 20(3). If the person was not deliberately absent, the court must make an order for discharge unless the person would be entitled to a retrial or appeal following extradition: s 20(5) and (7). These provisions are intended to ensure that a person is not extradited in breach of their right to be present at their trial under Article 6 ECHR: see [13] and Bertino v Italy [2024] UKSC 9 at [45].
The court accepted that the term “trial” (s 20(3)) means “the trial resulting in the decision” in respect of which extradition is sought and that this definition encompasses post-conviction sentencing proceedings where the court decides on a cumulative sentence, if the decision involves an exercise of discretion: [109]-[110] and see Case C271/17 PPU Zdziaszek [2017] 4 WLR 189.
The court acknowledged that the relationship between that definition (“trial”) and the definition of “conviction” (s 20(1)) is difficult to discern. That was important in this case because the appellant was present at his conviction and initial sentencing in June 2016 but not at the hearing in April 2022 where the Romanian court decided to impose a modified sentence. On its face, the structure of s 20 is that a person’s opportunity to be present at subsequent sentencing proceedings is irrelevant if they were present at conviction, even if the latter proceedings do (or at least could) lead to a different sentencing outcome.
Contrary to the decision of the DJ, the court ultimately held that the appellant’s case could not be determined purely on the basis of s 20(1) as that would be inconsistent with the approach in Zdziaszek and the fact that the Romanian arrest warrant expressly sought the appellant’s extradition in relation to the “decision” taken in April 2022. It was therefore relevant to consider whether the appellant deliberately absented himself from the hearing in April 2022. On that question of fact, the court was not satisfied that the appellant was summoned to the hearing or even knew about it. Therefore, in the absence of any right to a retrial or appeal, he was not liable to extradition.
Reasoning on Article 8
In the court’s view, the only question which it had to determine under this ground was whether the DJ adequately took account of the period of delay between the commission of the offences by the appellant and the extradition request. It concluded that the DJ had not done so and that this was another basis on which the appeal should be allowed ([118]).
The DJ did not directly address the overall length of the delay (nearly 10 years from the commission of the offences) and failed to give adequate weight to the requesting state’s culpability in respect of the delay ([117]). Based on its review of the case law, the court directed itself that long culpable delay by the requesting state diminishes the public interest in extradition, in particular because it can be taken to indicate the state’s own subjective view of the public interest in obtaining extradition ([21]). This was a “crucial factor” which should have weighed in the balance “significantly differently” when considering Article 8, so as to make the DJ’s conclusion wrong.
On the UKHRB
Anogika Souresh and Esme Cairns analyse the Supreme Court’s decision on deprivations of liberty in A Reference by the Attorney General for Northern Ireland of a devolution issue under paragraph 34 of Schedule 10 to the Northern Ireland Act 1998 [2026] UKSC 16.
