Theresa May refused to guarantee the rights of EU citizens living in the UK but did at least assure them that their situation would be a early negotiating priority. That perhaps was not terribly reassuring given that Theresa May also suggested that everyone should prepare for the UK to crash out of the EU with no deal at all and then called an election which has inevitably delayed the negotiations.

Already it is reported that the talks on the rights of EU citizens seem to have hit a significant stumbling block. This is by no means insoluable and negotiations are by their very nature bound to include differences of approach which need to be resolved. It would also be wise to be cautious about accepting leaked information at face value, given that both UK and EU negotiators have home audiences to please.

The information available is asymmetric. The EU has produced detailed negotiating guidelines, published today. In contrast, the UK’s White Paper on Brexit is extremely light on detail.

The key difference seems to be over how to secure the rights of EU citizens, meaning both EU citizens currently living in the UK and UK citizens currently living in the EU. In short, the UK wants UK law to apply and the EU wants EU law to apply.

The White Paper is silent on detail but leaked reports suggest the UK wishes to incorporate the rights of EU citizens into UK law and give them basically the same status as any other foreign nationals. This would be “Indefinite Leave to Remain” or “ILR”. It carries the right to live and work in the UK and to access various types of benefits. The UK has also stated that it is a “red line” that the jurisdiction of the Court of Justice of the European Union must be ended in the UK.

The problem is that domestic immigration status under UK law does not include all the rights that EU citizens currently possess and it does not include any type of legal protection for them for the future. It is also difficult for the EU to trust the UK on citizens’ rights given the UK is thought to be in breach of existing EU law already in several different ways. If the UK is breaching EU law already, how can the UK be trusted to stick to any new agreement?

Conferring a domestic UK immigration status on EU citizens does not deal with acquired rights on pensions, it does not carry a guarantee of equal treatment, it carries virtually no protection against deportation where even minor crimes are committed (or no crime at all in some cases) and it would subject family members to the UK’s harsh family immigration rules (officially the least family friendly of 38 developed countries according to the Migrant Integration Policy Index).

These issues might seem nebulous now, but imagine that Clara, a Spanish national working in the NHS for 10 years, wishes to retire in 2020 aged 65. Can she claim an old age pension here in the UK by combining her years of work in Spain and the UK? Imagine Herve, a French national resident since childhood for over 20 years, commits a crime and receives a 12 month prison sentence. Under UK rules Herve must be deported, but under EU rules he would be allowed to remain. Imagine Klaus, a German national, has been working in the UK and, after Brexit, wishes to bring his German or Russian wife and his children to join him. Has Brexit caused him to lose the right to be joined by family members under EU rules?

Imagine that a populist like Trump, Farage or Le Pen is elected in the UK in 2023 or 2028. That new government wants to remove the rights of foreign nationals to clam benefits at all, or to be joined by any family members, or to work in the UK. What legal protection would EU citizens have at that point?

In contrast, the EU wants EU citizens who moved to the UK under EU law to retain the full protection of existing EU law, supervised and enforced by the Court of Justice of the European Union. The negotiating guidelines clearly state that it is accepted that EU law will cease to apply but goes on to set out its first priority at paragraph 11:

Safeguarding the status and rights of the EU27 citizens and their families in the United Kingdom and of the citizens of the United Kingdom and their families in the EU27 Member States is the first priority for the negotiations because of the number of people directly affected and of the seriousness of the consequences of the withdrawal for them. The Agreement should provide the necessary effective, enforceable, non-discriminatory and comprehensive guarantees for those citizens’ rights, including the right to acquire permanent residence after a continuous period of five years of legal residence.

The document goes on to state that minimum rights would be the same as those in Directive 2004/38 and set out in TFEU Articles 21, 45 and 49 and certain other provisions of EU law.

The negotiating guidelines sensibly state that the rights agreed must be “enforceable” and then goes on:

In these matters, the jurisdiction of the Court of Justice of the European Union (and the supervisory role of the Commission) should be maintained. For the application and interpretation of provisions of the Agreement other than those relating to Union law, an alternative dispute settlement should only be envisaged if it offers equivalent guarantees of independence and impartiality to the Court of Justice of the European Union.

This insistence on an ongoing role for the Court is unsurprising. There are strong arguments that the UK has not properly respected EU law and the rights of EU citizens in the past. The notorious and compulsory 85 page permanent residence application form is a serious inconvenience. But what about the UK’s suggestion that self sufficient and student EU citizens without comprehensive sickness insurance are unlawfully resident already? What about the instant loss of EU rights of residence on acquiring British nationality? What about the UK’s approach to low paid or part time work? The UK’s historic hostility to EU free movement law is now haunting the negotiations.

In short, how can the EU possibly allow EU citizens currently living in the UK to lose all the rights of EU law and to blindly trust this and future UK governments properly to respect whatever rights are agreed in the Brexit negotiations without there being the oversight of the Court of Justice of the European Union, at least for this existing tranche of people? It would be to abandon those citizens to the whims of this and future UK governments.

Likewise, is the UK seriously suggesting that UK citizens living in EU countries should have their status converted to the domestic law of all of those other countries? That UK citizens in Spain would be treated the same as Spain treats other foreign nationals and so on? This in effect abandons British citizens to the whims of 27 other countries and it would be all but impossible to preserve their existing rights on welfare, access to health care and pensions.

Ongoing access to the Court for this finite group would allow for a dispute resolution mechanism on whether the UK is really in breach of EU law now or in the future or has merely stretched it in novel and previously unforeseen ways. The EU is not asking for the UK to bow to the jurisdiction of the CJEU in a general sense or for evermore or for future EU citizens who come to the UK after Brexit, just for the jurisdiction to continue for a limited, finite group of people who had already made their homes in the UK.