An IRCC settlement offer on judicial review usually arrives as a letter from Department of Justice counsel saying the Minister will agree to send your file back for redetermination if you discontinue your Federal Court application. You do not have to accept the first wording offered. You can ask for terms that make the redetermination worth having, such as a different officer, a chance to file updated documents and a deadline for the new decision, and you should deal with costs in writing before you discontinue. Costs in immigration judicial review are the exception, not the rule: rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules allows them only for “special reasons”.
This article draws on a CILA 2026 conference presentation by Warda Shazadi Meighen (Landings LLP) and the rules as published on Justice Laws. For the overall process, see our hub on challenging an immigration refusal at the Federal Court.
Key Takeaways
- A settlement offer is measured against the remedy you need, not against the alternative of losing. If the new decision will be made on the same stale record by the same office with no timeline, the offer may be worth less than it looks.
- Terms you can ask for include redetermination by a different decision-maker, an opportunity to file updated submissions and documents, and a deadline for the redetermination. None of these is automatic; they are negotiated.
- Rule 22 says no costs are awarded in immigration leave and judicial review applications “unless the Court, for special reasons, so orders”. Winning, or the officer simply making an error, is not enough on its own.
- Because rule 22 displaces the ordinary costs-on-discontinuance rule (Federal Courts Rules, r. 402), the speaker’s advice is to preserve costs expressly before you discontinue.
What does an IRCC settlement offer on judicial review usually look like?
Typically, a settlement offer from the Department of Justice in an immigration file proposes that the refusal be set aside and the application be sent back to IRCC for redetermination, in exchange for the applicant discontinuing the Federal Court application. That is roughly what the Court itself would usually order if you won, so the real negotiation is about the terms that come with it.
Under section 18.1(3)(b) of the Federal Courts Act, the Court may set aside a decision and refer it back “for determination in accordance with such directions as it considers to be appropriate”. Those directions are what you are bargaining over.
Should you accept the settlement offer?
Start with the remedy you actually need. The presenter’s framework is to “return to the remedy”: if the goal is permanent residence or a study permit, ask whether this offer moves you closer to that outcome than continuing to a hearing would. An offer is usually worth accepting when it gives you the same practical result as winning, faster and without the risk of losing.
Questions the presenter suggested asking before you sign:
- How many times has this file already gone back? The slides cite Vavilov, para. 142, which warns against an endless cycle of reviews and redeterminations. If this is the second or third remittal, a bare redetermination may not be enough.
- What are current redetermination processing times? A file sent back with no timeline can sit for months. Check the current IRCC processing posting for your program.
- Is there a legal question that needs an appellate answer? An appeal to the Federal Court of Appeal is only possible if the judge certifies a serious question of general importance (IRPA s. 74(d)). Settling ends that possibility.
If you decide to refuse the offer and continue, the slides suggest documenting a legitimate reason tied to the remedy, the terms, the record or future prejudice.
What terms can you ask for in a redetermination settlement?
You can ask for any term that makes the redetermination useful, and the Department of Justice can agree, refuse or counter. The terms most often worth raising are a different officer, permission to file updated submissions and documents, and a firm deadline for the new decision, together with clear wording on costs.
Redetermination by a different officer
The presenter lists “a different decision-maker” as directed relief to consider. The Court has power to remit a matter with directions, and the slides cite Vavilov (para. 141) and Mason on remitting to a different decision-maker where warranted. Put this in the settlement letter rather than assuming it will happen.
A chance to file updated documents and submissions
Judicial review is decided on the record that was before the officer. Our article on why the Federal Court will not look at new evidence explains why. A redetermination is different: it is a fresh decision, and the presenter’s framework asks at the outset whether the applicant needs to put new information before an officer. If your funds, job offer, family situation or country conditions have changed, ask that the settlement expressly allow updated submissions and documents within a set period before the new officer decides.
A deadline for the redetermination
The slides describe a deadline for redetermination as a settlement addition that addresses timing, and note that it is especially helpful where the deadline was already sought in the original Application for Leave and for Judicial Review. If you pleaded for a timeline, you have a stronger basis to ask for one in settlement. If IRCC delay was part of the problem, see our guide on what to expect before filing mandamus.
Consent judgment instead of a discontinuance
Another route is an order on consent, where the Court itself sets aside the decision and remits it on agreed terms. The presenter notes that consent is not automatic: under the Court’s practice guidelines, a judge may ask the parties to justify a proposed consent judgment before signing it.
How should the notice of discontinuance be worded?
If you settle by discontinuing, you file a notice of discontinuance under rule 165 of the Federal Courts Rules, in Form 166. Those general rules apply to immigration judicial reviews through rule 4(1) of the immigration rules. The wording, and the settlement letter it rests on, should record exactly what was agreed.
Practical points for the settlement letter and discontinuance:
- Identify the decision being set aside and record any agreed terms: a different officer, the period for updated documents, the redetermination deadline.
- Deal with costs expressly. The slides say “r. 22 displaces r. 402”, meaning the ordinary rule that a party is entitled to costs when a proceeding against it is discontinued does not govern immigration files. If you are seeking costs, preserve the claim in writing before you discontinue, or agree that costs will be determined on written submissions.
- Do not discontinue until the written terms are settled. Once the file is redetermined, the case may be moot (the slides cite Borowski and Jones, 2006 FCA 279), and your leverage is gone.
Can you claim costs when IRCC settles a judicial review?
Sometimes, but only if you can show special reasons. Rule 22 provides that no costs are awarded to or payable by any party in a leave application, judicial review or appeal under the immigration rules “unless the Court, for special reasons, so orders”. As a result, in most settled immigration files neither side pays costs.
What counts as “special reasons”?
The presenter summarized the threshold, citing Ndungu, 2011 FCA 208 (paras. 6 to 7) and Almuhtadi (para. 56), as conduct that is unfair, oppressive, improper or in bad faith. According to the slides:
- May qualify: test cases; misleading or delaying conduct by the Minister; opposing an application that is obviously meritorious.
- Not enough on its own: success, or an error in the decision; the case becoming moot late; public importance.
The slides add that special reasons should be supported by affidavit evidence.
How much are costs, if awarded?
If special reasons exist, the amount is set under rule 400 of the Federal Courts Rules, which gives the Court full discretion. In the presenter’s compilation of decisions, awards were typically modest, in the range of $750 to $4,000 (citing Zaeri and Kargo). One outlier, Carrero, 2021 FC 891, awarded $62,793 for reprehensible delay. The slides list Alldowell, 2025 FC 1850, at $500. These figures are one practitioner’s survey, not an official scale; each award turns on its facts.
How do you ask for costs after a settlement?
The slides recommend pleading costs early: cite rule 22 and particularize the special reasons in the Application for Leave and for Judicial Review (Form IR-1). After a consent, mootness or a reservation of costs, a request can be made by written motion under rule 369. In settlement, the presenter suggests seeking “costs to be determined on written submissions”, citing Matta, 2025 FC 807, among others.
Frequently Asked Questions
Do I have to accept a settlement offer from the Department of Justice?
No. You can accept, refuse or propose different terms. If you refuse, keep a written record of why, tied to the remedy you need or the terms offered.
Will IRCC send my file to a different officer after settlement?
Only if that is agreed or ordered. Ask for it expressly in the settlement letter or the consent judgment.
Can I submit new documents after IRCC agrees to redetermine?
Often you can ask for that. Make it a written term, with a set period for filing updated submissions and documents before the new decision.
Can I get my legal fees back if IRCC settles my judicial review?
Rarely. Rule 22 allows costs only for special reasons, such as misleading or delaying conduct. Success alone does not qualify, and any claim should be preserved in writing before you discontinue.
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Disclaimer: This article is for general information only and is not legal advice. Immigration law and IRCC/ESDC policy change frequently, and every case turns on its own facts. Reading this article does not create a lawyer–client relationship. Obtain advice tailored to your situation before you act.
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