Directive 2008/115, also known as the Return Directive (RD), sets out the procedure to be followed by Member States when returning illegally staying third-country nationals (TCNs), including the order in which the various, successive stages of that procedure should take place. According to Article 6(1) RD, the return procedure starts with an obligation for the Member States to issue a return decision against any irregular TCN. This return decision should contain a period ranging between seven and thirty days during which the irregular TCNs can independently organise their departure (Articles 7(1) RD). Member States have an obligation to grant this period for voluntary departure (VD) before taking any measure to carry out forced return. The initial period for voluntary departure can be extended, where necessary, by taking individual cases into account, such as: 'the length of stay, the existence of children attending school and the existence of other family and social links.' (Article 7(2) RD) According to paragraphs three and four of Article 7, the right of an irregular TCN to depart voluntary to his/her target country can be limited only in precise circumstances, which have to be strictly interpreted. In the case of 'risk of absconding', the Member States may, first, require the addressee of a return decision to fulfil one or more of the following obligations: report regularly to the authorities, deposit an adequate financial guarantee, submit documents or stay at a certain place (Article 7(3) RD). As a last resort, the irregular TCN can receive a period shorter than seven days for voluntary departure or even be refused the period altogether in limited circumstances (Article 7(4) RD). Shortening the voluntary departure period or not offering that option can be taken by the Member States if: there is a risk of absconding, there have been abusive applications by the TCN (i.e. an application for a legal stay has been dismissed as manifestly unfounded or fraudulent); if the TCN poses societal risks, that is he represents a threat to public policy, public security or national security. The aim of this section is to offer a comparative overview of the national jurisprudence dealing with issues related to the interpretation and application of Article 7 RD. The present synthesis is based primarily on jurisprudence originating from eleven Member States,4 which have been selected on the basis of the number and complexity of cases dealing with Articles 7-11 RD. The section unfolds in four parts following the four paragraph structure of Article 7 RD, and also the rationale of the Directive as highlighted by the CJEU, namely of the gradual unfolding of return measures,5 ranging from the least restrictive to the TCNs freedom (voluntary departure) to the last resort return measures (refusal of VD in the case of Article 7 RD, or detention for the overall return procedure).
