The latest incident of Theresa May managing to snatch a worse defeat from an already pretty bad one has been the way she announced the “fair and serious” offer to the rights of the 3 million EU citizens who are in the UK at the moment. Somehow, something that was supposed to put their mind at rest has in fact possibly worsened their situation.

The offer is to give EU citizens a “settled status”, which allows them to stay in the UK with all the same rights as British citizens once they have been resident in the UK for at least five years. It isn’t clear when the cut-off date will be set for people to be living in the UK, and it isn’t clear whether the deal applies to family members. May has also said the deal is contingent on the EU offering a similar deal.

For someone with a richly-developed political tin-ear, this takes the biscuit. The EU have already mentioned a similar deal in the position papers they published before formal negotiations began, but said that it would encompass both EU citizens in Britain and British citizens in the EU. May decided not to mention this position at all.

This is where the most important difference is, and the crucial factor on whether a deal can be reached in this area. Under May’s offer, the rights of EU citizens will fall under British laws, as she no longer wants the European Court of Justice (ECJ) to have any jurisdiction in the UK after Brexit. The European Commission argues this will weaken their citizens rights.

This argument is worth considering. Citizens rights within the ECJ are agreed and settled. We know what they are. We know they provide a basic baseline that constituted one of the only points for Remain that Jeremy Corbyn managed to make when he deigned to campaign to stay in the EU (‘social protections’).

No-one knows what rights will be given to citizens under British law. They could be greater than ECJ-granted rights (we should remember that the UK has been way above and has been way ahead of the baseline on environmental, worker and social protection). But they could be lower.

The EU may view their relationship with EU citizens in Britain a bit like an estate agent might do sellers and buyers they introduce. If the seller and buyer then go off and arrange something themselves, the estate agent loses control (and money). The European Commission will not want to give up any control they already have. They might also feel beholden to the EU citizens who moved in good faith to Britain thinking they were safe and protected by ECJ rights.

On the other hand. This seems very odd. If I go to the USA, I am covered by US laws and rights. If I go to other independent countries, I am covered by their laws and rights. Why, if Britain is not in the EU, should anyone who comes to Britain not be covered by British laws and rights. The answer is that this is a unique situation and is probably covered by the point above.

This will be the key point. If May was offering full British citizenship to EU nationals then it would be easier to insist they be covered by the UK legal system. But she isn’t. It will be difficult to do anything in which EU citizens retain EU citizenship without being covered by the ECJ.

The many protesters who think this is simple, are wrong. Unless is not just about worrying about EU citizens here (which I do) but is also about winning a softer Brexit or making Brexit harder.