Peter Greste and Mohamed Fahmy ask chief prosecutor to send them to Australia and Canada, after case is sent for retrial

Two of the three al-Jazeera English journalists jailed in Egypt have formally applied to bypass Egypt’s legal system by being deported to their home countries, after an appeals court on New Year’s Day decided against releasing the trio and instead sent their case to retrial.

The former BBC correspondent Peter Greste and ex-CNN producer Mohamed Fahmy have asked Egypt’s chief prosecutor to send them respectively to Australia and Canada, their families announced on Thursday. The pair’s applications make use of a presidential decree enacted in November that allows foreign defendants to be tried in their home countries instead of Egypt, and which is thought to have been written with their cases in mind.

The decree still leaves their third jailed colleague, the Egyptian national Baher Mohamed, at the mercy of Egypt’s judicial system, which international observers denounced as chronically flawed following the trio’s conviction last June.

Speaking to the Guardian in the hours after Thursday’s hearing, Greste’s father Juris said: “We believe it is our best option. It’s not to say that we don’t trust the [Egyptian judicial process] but we believe it is our best option of achieving Peter’s freedom sooner rather than later.”

In a separate television interview, he added: “Clearly we have big hopes in the deportation process. Clearly we would be prepared to do almost anything to [avoid having] to go through a second trial … [since] there is nothing that can be guaranteed about a retrial.”

The announcements came after a dramatic day in Cairo that saw an appeals court refuse to release the three jailed journalists, opting instead to send their case to retrial on procedural grounds.

The court’s decision means that after more than a year in jail, Fahmy, Greste and Mohamed still now face an extended period behind bars, whether or not any applications for deportation are successful. No date for a new hearing has been set, while little is known about how the newly created deportation process might work.

The Egyptian president, Abdel Fatah al-Sisi, has previously hinted at the possibility of intervening in the case. But he stands to lose considerable domestic capital should he involve himself publicly, and on Thursday afternoon his office did not respond to questions about his intentions.

But by evening the possibility of deportation nevertheless left the Grestes more buoyant than they had earlier been after the disappointment of the morning’s appeal hearing.

The appeal spanned two sessions that in total lasted less than half an hour, with both reporters and defendants barred from entry. Defence lawyers were given just minutes to argue their clients’ case, while the verdict was announced before relatives were allowed to re-enter the courtroom after a recess. As the news filtered through to the corridor outside, the families of the defendants reacted with shock, having earlier expressed hope of a conditional release.

After being told of the decision, Greste’s mother, Lois, was initially lost for words, saying simply: “I can’t believe it.” Standing next to her, Greste’s father, Juris, said: “I’m shocked. I’m shocked.”

Once the verdict had sunk in, Juris added a few minutes later: “We truly cannot believe that Egypt wants to put themselves through this again. This was always on the cards, but even though we have learned not to expect anything, or expect the unexpected, we did expect a little bit better than this.”

In the corridor nearby, Fahmy’s brother, Adel, said he would be “very disappointed. We knew a full release was impossible, but we had high hopes of a release on bail.”

Greste had been in Egypt only a fortnight when he was arrested in late December 2013 along with his two AJE colleagues, as well as several students accused of aiding them in a terrorist plot. They were convicted in June 2014 of aiding terrorists, belonging to the banned Muslim Brotherhood, spreading false information and undermining Egyptian national security.

Within Egypt itself, where the coverage of AJE’s Arabic sister channels has strongly favoured the Brotherhood, many government supporters saw the journalists as a legitimate target. But outside Egypt, observers saw the case as a politicised attack on freedom of expression that ignored due process, and formed just one part of a rampant crackdown on all forms of Egyptian opposition.

Egyptian officials publicly maintain that their judiciary is strictly independent of any executive authority, and say that no case in Egypt is politicised. But the trio are among at least 16 journalists and – according to the police’s own figures – at least 16,000 political prisoners currently detained in Egypt. Independent estimates put the figure at nearly 40,000.

Following Thursday’s appeal hearing, international rights defenders continued that criticism. Reporters Without Borders said the trio “must be released without delay”, while Amnesty International stated that a retrial would “prolong the injustice that Mohamed Fahmy, Peter Greste and Baher Mohamed have faced”.

Amnesty’s Middle East and north Africa deputy director, Hassiba Hadjsahraoui, said: “These men should never have been jailed in the first place and should not have to spend one more day in prison. Instead of prolonging their unjust detention pending a retrial, they must be freed immediately.”

Leaving the central Cairo courthouse, Australia’s ambassador to Egypt expressed cautious optimism about the prospect of a second trial. “We had very serious concerns about the first trial,” said Ralph King. “So it is very encouraging that a retrial has been ordered but still we maintain that journalists [should] never be on trial.”

But Fahmy’s family have lost faith in the legal process after an initial trial that used, among other incongruous items, a song by the Australian singer-songwriter Gotye as evidence. “It’s very disappointing for me and Mohamed because we were hoping that he would be released since he did nothing wrong,” said Fahmy’s fiancee Marwa Omara. “The only way out now is the deportation law. We hope that the prosecution will approve our request to transfer Mohamed to Canada.”

While the Grestes have portrayed the trio’s plight as one solely connected to the freedom of speech, the Fahmys see them as pawns in a cold war between Egypt and Qatar, the owners of al-Jazeera, and key supporters of the Muslim Brotherhood. Relations are gradually improving between the two countries, culminating in Qatar’s closure of the Egyptian wing of al-Jazeera last month, raising hopes that the trio might be released in a reciprocal gesture by Egypt.

“I hope things keep on getting better between Egypt and Qatar as it’s totally unfair that these poor journalists should be subject to their disagreement,” said Adel Fahmy.

Back at their hotel, Greste’s parents hoped that the end was in sight for their son and his colleagues. “We are confident that whatever distance we still have to run,” said Juris Greste, “we’ll all get there to the finishing line.”

• Additional reporting by Manu Abdo