No previous R2R decision - now refused on migration

I don’t know if others have been coming across this….

Client is Dutch, came to UK 2004. On JSA then IS from 2005 due to ill health. No partner, no working dependents in UK. Has never worked in UK.

Was migrated to IBESA in 2012 and failked WCA. At same time the Benefit Integrity Centre spotted that no previous HRT/R2R had been done in 2004 so they did one and of course he failed.

Are there any legal arguments that could be used about the DWP’s failure to carry out a proper HRT in 2005? Problem is his receipt of IS on grounds of ill hgealth cannot be taken as “legal” residence or residence in accordance with immigration(EEA) Regs as far as I can see, and a permanent R2R would be his only chance.

Otherwise its JSA only….

Many thanks