I wondered what people's experiences have been when leaving Spain with a Spanish spouse after staying more than 90 days (citing 2004/38/EC). Maybe I did this wrong but I arrived in Almería recently (having been in Spain for 70 days before Xmas). I went in the non EES queue, showed my marriage cert etc and said I was joining my Spanish wife. I was allowed in because I was under 90 days but he just kept telling me I needed to apply for an Arraigo Familiar (which we don't want to do). We plan to leave together in April which will put me well over 90 days. We have left together in the past (before EES) with no in problem. Has anyone travelled in this way recently (post EES)? Was it all fine?

I believe airports like MAD or TFS began with implementation of the EES system in early November so we will be nearing the 90 mark soon, after which the first "overstayers" should technically be flagged by the system.

In your case you entered via the non-EES route so not sure what will happen if you need to use the electronic gates for exiting. Or maybe you will have to leave that way because EES registration only works for inbound travellers?

Your post is as clear as mud.
You cant cite EU directive, unless you are EU citizen (which I think you are not). Only your wife (EU citizen) can cite EU directive and say you are tagging along. Not other way around.

Did you arrive in Almeria on your own? If so, you were told right.
You wont have problem leaving together, just use non-EES lane, manual boot, NO e-gates.
If in doubt, check EES official pages for guidance, on europa.eu .

Agreed. I don't have rights in this situation (if only) - it's about my wife's right to have me join her. The EU directive uses the language of 'accompanying or *joining*' the EU spouse quite extensively. It's certainly the case that things get more complicated beyond 90 days and may differ between member states. I had not exceeded 90/180 when I arrived in Almería, but I will do during this stay soI tried to enter outside the EES. My belief being that was allowed under EU law as I was joining my EU spouse and this stay would be outside the Schengen 90/180 rules.
I'm curious what would happen in this scenario. I enter with my wife, we stay for 100 days and I leave with my wife (outside of EES). My wife then returns to Spain on her own a week later and shortly after that I travel to *join* her. If Schengen rules were applied, I wouldn't be able to enter. In this scenario doesn't 3004/38 protect my wife's right to have her non-EU spouse join her without Schengen rules applying?

Of course he can. He already entered Spain using the rights given to him by the 2004 directive by proving it applied to him, so when leaving Spain he can prove it applies to him again (even more so if his wife is with him) and cite whatever he wants if necessary.

Also, the non-EU partner is accompanying the EU partner and is off the Schengen 90/180 day clock. If the EU partner has no intention of becoming a resident then the non-EU partner doesn't need to apply for residency either. And who's to say they didn't visit France or Portugal before returning to Spain to reset the EU partner's 90-day clock?

Yes, this is exactly our situation. My wife doesn't want to become a Spanish resident. We are happy to stay in Spain for two period of less than 90 days, with a gap for Xmas, and travel by citing 2004/38. I was a bit thrown by the immigration officer. I expected him to look at the marriage certificate, wife's DNI etc and say yes fine. Instead, he took my finger prints, photo and stamped my passport telling me I needed to apply for an Arraigo Familiar (which we definitely don't want to do). Where I went wrong, I think, was not being better prepared to cite 2004/38. It threw me, but my wife and I will be leaving together in April and I'm hopeful it will be more straight forward when we leave.
I think a factor in what happened was that the officer was in a particularly bad mood because of all the UK passport holders being diverted by EES to his booth and thereby holding up the entry of Spanish passport holders.

If you wanted to dot all the is and cross all the ts for entering Spain as a partner of an EU citizen you would need the Hague seal on your marriage certificate and a sworn translation to Spanish and maybe a notorised copy of your partner's passport/DNI.

If he's in a bad mood then there's little you can do apart from grinning and bearing it. That said you can apply for arraigo familiar from inside Spain so he probably did the work to have you on file in case you did.

We were married in Spain and have the certificate not just the libro de familia so I'm assuming that's all good. I hadn't thought about a notarized copy of my wife's DNI/Passport. Good idea. Although in the last situation he is wasn't interested in looking at any documents notarized or otherwise. Yes, as you say, I just have to be polite.

I actually think this is quite a niche situation for those dealing with passport control/immigration. At the end of the day I don't think they're familiar with someone staying as long as they want and yet not being documented as living in the EU with their spouse/partner. So in a technical sense it should be fine, but in a practical sense I think it will just cause issues.

On the other hand there's not much that can be done if your wife is a non-resident in Spain.

Now this might be thinking outside of the box but in this situation I would be tempted to have the wife apply for residency elsewhere in the EU, possibly somewhere super-easy (or at least it was several years ago when I last checked!) like Malta... and then apply for your residency permit via the "Family member of an EU citizen" route. 5 years of peace & quiet when travelling.

He can what? Did you read my post in full.
He is NOT EU citizen.
EU directive only apply to EU CITIZENS.

Only his wife has those EU rights and without her being present, there is none to exercise them.
None of those rights apply to HIM, until he gets residence card.

I don't have rights. I'm not an EU citizen. The rights are my wife's; her right to have her spouse join her in her own country. I can travel to join her not because of my rights, because of hers.

I read the title of the 2004 directive:

He has the right to join her if she is already in the EU but he is at the border (articles 3.1, 6.2, etc...).

Hope that helps.

Hi,
I have the same issue but in reverse. I am a UK citizen and also holding a EU country passport. My wife holds a UK passport only. We travel to Portugal to our holiday home and lately the border control in Faro Portugal has insisted that even though my wife accompanies me, she can only be excluded from the 90 day rule if she has a residence card. I am currently trying to find out how my wife can be registered as a EU Family member without needing a residence card, which she does not want or needs according to the EU directives to avoid the 90 day rule.

Be interested to know if and how you resolved your own situation to avoid the 90 day restriction when travelling together and not having a residence card. Did you manage to convince Spanish border control of the EU rules?
Thanks

Personally this feels like a "dead rule" that is not only not generally known but also unlikely to be guaranteed to be accepted every time you travel.

The only long-term solution is to get your partner the "Family member of an EU citizen" (residency) card that is initially issued for 5 years and you can get this done anywhere you reside (it doesn't need to be the EU country where you are a citizen).

If you don't do this you won't solve the issue but will constantly run into trouble, regardless of whatever the (almost completely unknown) legal situation is when it comes to the "small print" that seems to be disregarded by pretty much everyone, everywhere. Just laying it out as it is...

Thanks for advice but in Portugal and I think in Spain too, is that an application for a residence card on the basis of then becoming an ‘EU Family Member’ is because one is applying to stay for longer than 3 months. Staying for short trips won’t cut the mustard and likely deny the application from being accepted.