Advice on varying ILR from Set M to Set O

[chista]

Hi there,

Today I submitted my biometrics for my Indefinite Leave to Remain Visa, and I applied under Set M. Regrettably it seems I should have applied under Set O. I received the following information from the case worker considering my application:

'Thank you for your recent application to settle in the UK as the Spouse/CP of a person settled in the United Kingdom. Your application has been made for indefinite leave to remain under the Spouse route of Appendix FM within the Immigration rules.
In order to qualify for indefinite leave to remain under Appendix FM you are required to complete either at least 60 months or 120 months of leave under this route, as stated in section E-ILRP.1.3 of Appendix FM below:
E-ILRP.1.3. (1) The applicant must, at the date of application, have completed a continuous period of either:

(a) at least 60 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1.; or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1.; or
(iii) a combination of (i) and (ii);
or
(b) at least 120 months in the UK with:
(i) leave to enter granted on the basis of entry clearance as a partner granted under paragraph D-ECP.1.1. or D-ECP.1.2.;
or
(ii) limited leave to remain as a partner granted under paragraph D-LTRP.1.1. or D-LTRP.1.2.; or
(iii) a combination of (i) and (ii).
However, we note from your immigration history that you have not completed any/enough time under the partner route of Appendix FM.
Immigration History.

On 02 May 2014 you applied for Entry Clearance as a Tier 5 (Youth Mob) Migrant and you were granted Leave to Enter the United Kingdom, valid from 14 May 2014 to 23 July 2016.
On 01 May 2016 you applied for T2 SW – Dep Partner Joining Relatives – Leave to Remain (LTR) and you were granted LTR as a Tier 2 dependant Partner valid from 19 May 2016 to 14 March 2019.
On 12 February 2019 you applied for T2 SW – Dep Partner Applying With Relatives – LTR and you were granted LTR as a Tier 2 dependant Partner valid from 27 February 2019 to 29 March 2022.
On 03 March 2022 you applied for Spouse of Settled Person – Indefinite Leave to Remain (ILR) under Appendix FM of the immigration rules.

As such, were your application to proceed for indefinite leave to remain as a partner under Appendix FM of the immigration rules, it is highly unlikely that the application for settlement would succeed and result in a grant of indefinite leave to remain (ILR). Accordingly, we would like to give you the opportunity to review your application.
If after you have reviewed the application you would like to submit a fresh application, please advise us of the decision within 14 days of the date of this email. We will hold the application submitted on 03 March 2022 until a new application has been submitted before processing a refund of the fee minus a £25 admin charge.
Please note as we have begun consideration of your case before the end of the next working day, we have met our obligations under the Super Priority service and you will therefore will not be eligible for a refund of the Super Priority fee.
You have the option to consult a registered immigration adviser to discuss your best option.
If you choose to continue with this application or you do not reply within 14 days of the date of this email, your application will then be considered using the criteria laid down in the partner route of Appendix FM.
We look forward to hearing from you.'

I've responded with the following, and am waiting to hear back:

'Thank you for your email, and the opportunity to review my application. I wanted to reply to you as soon as possible, since you point out that it is "highly unlikely" to be approved in its current form.
As you've seen in my immigration history, I have been in the UK as a partner, PBS Dependant,of a Tier 2 migrant since 19 May 2016, this was extended on 27 February 2019. So, there's no doubt that I have completed more than five years as a dependent partner. Was this not the limited leave to remain as a partner granted under paragraph D-LTRP.1.1?

My partner has attained Indefinite Leave to Remain in 2021 and I wish to do the same having been on this visa type for 70 months.

Have I applied for the ILR through the 5-year route using Form Set M, when I should have applied using Form Set O?
For example, this is the criteria that our situation falls into:
Apply as a partner (dependant on a work visa)
You may be able to apply for indefinite leave to remain if both:

you’re a dependant on your partner’s work visa
your partner settled in the UK using their work visa
Additionally, is Appendix FM the criteria for those applying through Form M, or all types of ILR/settlements applications?

Any clarifications greatly appreciated'

I have contacted Immigration Advisors recommended in my local area by the Home Office this afternoon, but nobody was available to talk to me.

Does anyone have advice on switching an ILR from Set M to Set O? Grateful for any advice!

[ywlgy]

You should reply "I would like to submit a fresh application" and submit a Set(O) application ASAP before 29 March 2022. Quote the Set(M) UAN at the beginning of new application form when asked "if you have other applications pending with UKVI", so that they know you are varying from SetM to SetO