States should limit detention emphasizing the beneficial effects of effective return of nondetention. The EU should also emphasize the fact that by using lesser coercive measures and non-detention States could save money. Further, such measures serve as better indicators for a potential return to the individual’s home country. The CJEU has already held that when an applicant does not comply within the period for voluntary departure, States must use the least coercive measures for returns and cannot implement a criminal detention sanction for failure to comply with an order to return136. Detention Period The EU must define what is considered to be admissible “longer periods” for detention. It must also clarify what is meant by “exceptionally large” number of applicants, so as to avoid a State citing its system is overwhelmed when, in reality, it merely wishes to continue to detain individuals. Although this provision is reasonably based on the possibility of a State’s limited capacity to manage a high number of applicants, continuing to detain an individual beyond what is proportionate is a violation of the Directives. While the term “longer periods” allows for some flexibility, as it allows a State to respond to the situation on the ground. However, there needs to be a definition and/or a range of what is considered an extended period of time. For example, this time may depend on the number of applicants, in which longer periods may be extended to 30-45 days if there are over 5,000 unforeseen or unexpected applicants. The main issue that arises from the lack of definition is arbitrary detention. The CJEU has ruled that the RD does not preclude penal sanctions for an unlawful stay in determining whether an applicant has a right to stay.137 The court’s decision 136 137 Case C-61/11, El Dridi, alias Soufi Karim, 2011 E.C.R. 268, para. 59. Case C-329/11, Achughbabian v. Prefet du Val-de-a Marne, 2011 E.C.R. 807, para. 37-39, 45. 41