When can a family be forced to go through passport control separately?

Question

I am an EU citizen and I'm travelling with my wife (non-EU, not Annex II). She got a 2 year multiple-entry visa as EU family, and this is already the 3rd time that we enter/exit Schengen since getting it (in the past she also held an EU residence card, but we're now not resident in the EU anymore).

This time, something weird happened: upon exiting Italy: I queued in the all-passports queue with my wife (the only EU queue uses automated passport checks, which my wife cannot use) and presented our passports (together) to the border guard.

They immediately reacted saying that I should go to the automated passport checks. I explained that I was travelling with my wife, and I thought that would satisfy them, but instead they returned my passport, instructed me to go to the automated checks, and when I told them that I'd at least wait for my wife to get through passport check before leaving her, they also seemed quite aggravated (and I thus stepped away a couple of meters back).

To clarify: this is not because passport control was crowded, but on the contrary: there was no-one else in the queue. One more detail: police in this airport often defaults to speaking Italian and do minimal efforts to communicate in English, my wife's knowledge of Italian is rudimentary, which is an additional reason for why I prefer to be nearby to help her.

I know that, if there's an EU passports queue, my wife has a right to queue there, but indeed I suspect that there might not be a right for me not to use the automated passport gates, if I am so instructed by border guards.

But still, I am a bit surprised that this could happen, as from the same stackexchange question:

the chance that she would have to explain herself or would even be refused entry are much higher if she enters on her own without the benefits of your freedom of movement rights. While not impossible, establishing that her earlier stay really was covered by freedom of movement rules is also more complicated if you are not present to show your passport and assert your citizenship.

arguably, this is not much of a problem when exiting Europe (as compared to entering), but it still feels a bit shocking that the rules would allow to split families for what is, apparently, no good reason.

Answer 1

First of all, the immigration officer was clearly wrong. The Schengen border code recommends that at least on high traffic border crossings, three queues should be used:

• A: EU, EEA and CH citizens
• B1: visa not required
• B2: all passports

I've rarely seen the B1 variant, but most larger border crossings have the A and B2 queues. Important for your case is that the Border Code article 10, section 2 clearly states that persons enjoying the right of free movement are entitled to use any of these queues. The immigration officer either didn't know the rules he is supposed to implement or he was simply too lazy to check you and wanted you to use the automatic gates instead. That is of course not ok, but it is also not particularly exceptional that public officials don't care about the job they are assigned to do.

When somethings like this (or similar) happens, you basically have two options:

• You can stand your grounds, persist on your rights, ask for a superior officer and hope that he agrees with you. That is however in no way obvious, you may very well just end up wasting even more time and like in this case, where you had a flight to catch, a non-negligible risk would be that you miss your plane.

• You can do what the officer tells you and accept his wrongdoings. It is of course still possible to later send a written complaint to the involved agency. You have no guarantee however that anyone cares about your complaint.

On the other hand, I find it a little bit strange that you don't think that your wife would be able to pass immigration control alone. I have been through god knows how many immigration checkpoints and encounters with other public officers where we do not share a common language and that has never been a significant issue.

Answer 2

As far as the Schengen Borders Code is concerned, you're definitely allowed to use any lane to cross the border, there is no reason or basis to direct you away from an “all passports” lane. Automated passport gates are only mentioned in relation to the upcoming EES and the language also seems to assume that using a self-service system is a privilege but not an obligation (“Persons whose border crossing is subject to a registration in the EES […] may be permitted to use a self-service system for the carrying out of their border checks”).

So you won't find any specific guidance on when and how you could be forced to go through passport control separately because that's not something that was foreseen by the drafters of the regulation. In practice, confronting border guards about it might very well create more difficulties but it's difficult to predict when that might happen.