ILR Set(M) Rejected :( please help!

[Kundan-Yadav]

Hi All,
I had applied for my Wife's ILR application in nov'21. Just got this response from HO today.
As far as I know she has done 5 years as spouse/dependent of me and I've got ILR last year.

Please help me if you understand what they are talking about.I'm in so much stress now. Please help me if you can. thanks.

"
We are writing to you regarding your application for indefinite leave to remain made on 22nd November 2021 under the reference above.
You have submitted an indefinite leave to remain application as the spouse of a settled person, this application will be assessed under Appendix FM of the Immigration Rules.
Having assessed your immigration history, the Home Office has deemed the application you have submitted as incorrect. To be granted indefinite leave to remain you must have completed 5 years under paragraph D-LTRP.1.1 of the Appendix FM route.
Please see your immigration history below:
WRITE IMMIGRATION HISTORY

On the 29th May 2015 you applied Leave to Enter on Tier 2. This was granted on 2nd June 2015 to 1st June 2016

On the 22nd November 2016 you applied Leave to Enter Partner on Tier 2. This was granted 24th November 2016 to 4th June 2021

On the 30th April 2021 you applied Leave to Remain PBS. This was granted 28th May 2021 to 29th April 2022

You applied Indefinite Leave to Remain as a spouse under Appendix FM on 22nd November 2021

As you have not done enough time on route the Home Office would like offer you the chance to make another application to extend your leave within the United Kingdom. In order to do this we will need you to resubmit a new application with another team.
If the applicant has 3c leave then put the following
As your last visa expired on 29th April 2022 you are currently covered by 3c leave. If you withdraw your current application with us before submitting a new one your 3c leave you will be cancelled. This could have a negative impact on your future applications with us. You would also become an overstayer and may be liable to be removed.
If you chose to submit another application please inform us and we will get your current application withdrawn and refunded. You will receive a full refund minus a £25 administration fee should you choose to withdraw. "

[zimba]

Form SET(M) should ONLY be used by people who have spent 60 months under the family route visa NOT the PBS dependant route. You should have applied using form SET(O). Make a new application under SET(O).

We see people making this mistake regularly as they incorrectly think they need to apply for the spouse of a settled person while their spouse has never been granted a visa under such route. The dependant visa is NOT the same as the family/spouse visa

ALL dependant visa holders MUST apply using form SET(O)
ONLY people who spent 60 months under family/spouse visa should use form SET(M)

https://visas-immigration.service.gov.uk/product/set-o

[Kundan-Yadav]

Looks like the mistake was on my part. I'll re-submit a fresh SET(O) application.
Thanks a lot for a quick reply.

[ROBINedyah]

My wife is facing exactly the same situation. We replied to the Home Office stating that we want to resubmit a set(o) application but received no response so far.

If we resubmit a new set(o) application with 10 working days, will my wife's 3c leave remain intact while the new application is under consideration?

[zimba]

My wife is facing exactly the same situation. We replied to the Home Office stating that we want to resubmit a set(o) application but received no response so far.

If we resubmit a new set(o) application with 10 working days, will my wife's 3c leave remain intact while the new application is under consideration?

The new application will be a variation of the previous one. Apply now

[ROBINedyah]

My wife is facing exactly the same situation. We replied to the Home Office stating that we want to resubmit a set(o) application but received no response so far.

If we resubmit a new set(o) application with 10 working days, will my wife's 3c leave remain intact while the new application is under consideration?

The new application will be a variation of the previous one. Apply now

This is what i hope and believe. However, i also got opposite advice from immigration advisors/lawyers. They said that since the set(m) application is rejected and my wife's original leave to remain has expired, she will be an overstayer once she applies for set(o), thus losing 3c status and right to work.
I would argue that technically the set(m) application seems not to be rejected yet and the Hone Office is giving us a chance to rectify the mistake by varying the application to set(o).

We have been trying to get a confirmation from the Home Office but has received no response for 6 days.

Since my wife works full time, it is really important that her 3C leave remains intact.

[zimba]

As I said, do not wait as UKVI will not communicate with you. The application by the look of it is not rejected so apply for a new SET(O).

[LadyC]

My wife is facing exactly the same situation. We replied to the Home Office stating that we want to resubmit a set(o) application but received no response so far.

If we resubmit a new set(o) application with 10 working days, will my wife's 3c leave remain intact while the new application is under consideration?

The new application will be a variation of the previous one. Apply now

This is what i hope and believe. However, i also got opposite advice from immigration advisors/lawyers. They said that since the set(m) application is rejected and my wife's original leave to remain has expired, she will be an overstayer once she applies for set(o), thus losing 3c status and right to work.
I would argue that technically the set(m) application seems not to be rejected yet and the Hone Office is giving us a chance to rectify the mistake by varying the application to set(o).

We have been trying to get a confirmation from the Home Office but has received no response for 6 days.

Since my wife works full time, it is really important that her 3C leave remains intact.

Go ahead and apply for SET(O) as advised by Zimba, a friend had similar issue and also received email from UKVI. She now has her ILR
and the intial abeit wrong SET (M) application fee has been refunded as well.

[ROBINedyah]

Thank you both. My wife just applied for set(o) using priority service. However, the next available ukvcas appointment is 28 days later... her employer is confident that she retains the right to work in the mean time. I hope there will be no further issue...