Tier 2 General Visa refused - Basis NOT A GENUINE VACANCY

[S_M_A]

Hi Experts.

I need your advice on Tier 2 General visa application refusal on the basis that vacancy is not genuine.

Actual Refusal:

You have claimed 30 points under paragraphs 76 to 84A of Appendix A of the Immigration Rules.
You have been assigned Certificate of Sponsorship by (Company Name) which outlines you have been offered a job as an Accountant earning 28,500 pounds per annum.

The COS you have provided details that a resident market labour test has been conducted and outlines that the roles was advertised for 30 continuous days from 29/09/2014 to 28/10/2014 on two websites. At interview, you confirmed that you had applied for the job through Indeed recruit and that you were interviewed for the role on 2 occasions whilst you were in the UK, firstly on 13/10/2014 and then on 16/10/2014. You stated you were interview by a different person on both occasions. I do not consider it credible that you would have been interviewed for this role twice midway through the recruitment compaign. The recruitment campaign according to the information on COS did not finish until 29/10/2014. yet you had undertaken two interviews by the 16/10/2014. You further stated that you brother, a Tier 1 migrant in the UK, works for the same company in the UK.
I refused your entry clearance on the basis of Appendix A 77H.

Your connection to this business through your brother and the fact that you have been confirmed you had two interviews before the closing date of the recruitment campaign means that I am satisified that the job on offer have been tailored to exclude resident workers from being recruited.

Actual facts stated in interview:
Applied on 7th October 2014
1st Interview 13th October 2014
2nd Interview 16th October 2014
Job Offer 31st October 2014 (after end of recruitment campaign)

Please experts guide on what grounds shall i appeal, as i just checked there is no legal requirement that your relative should not be working for this company. Requirement is that Level 1 user should not be relative and in my case my brother works in separate department.

Need your help please
Thanks

[S_M_A]

My Qualification and Experience

I am an ACCA member and had 4.5 years experience from one of Big 4 firm in the same rule.

[Frontier Mole]

Essentially the crux of the matter is a failing not with yourself but with your Sponsor.
Many assumptions and reading between the lines IMHO the caseworker is stating that you could not have been selected for the role prior to the completion of the RLMT. In essence you were pre-selected. So it was not a fair and open recruitment process.
It is not a big leap to get to that point given what you have stated in interview. The secondary issue of your brother is no more than a nod to how,why you might have been selected for the role.
What would an appeal achieve, that is a good question? I don't hold out much sucess for an appeal for two reasons.
From your own interview you have confirmed that you were interviewed for the role twice before the RLMT concluded. The issue with that is you could not enter the running for the role prior to the end of the RLMT and therefore should not have been interviwed before that conclusion date.
The Sponsor is not going to escape a visit and will almost certainly have their licence suspended because of the RLMT failing. This may lead to revocation action thereafter. So appealing the decision may be a moot point if the Sponsor is likely to lose access temporarily or permanently to their licence as you cannot be awarded a visa to a suspended or revoked Sponsor.

A couple of other points - is your brother a director and or shareholder of the company? How long has the company held their licence and have they employed tier 2 workers?
If your brother is a director / shareholder / partner that will nail the appeal as it is an easy balance of probability conclusion to draw that the job was yours even before the RLMT was undertaken.
If the company has held the licence for a couple of years and employed other similar tier 2 roles in the past that looks a lot better than they got the licence this year and you are the first tier 2 to be sponsored.